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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


"b-o  I 


UNINCORPORATED  ASSOCIATIONS. 


THEIR  LEGAL  STATUS  IN  PENNSYLVANIA,  AND 

SOME  OF  THE  RIGHTS  AND  OBLIGATIONS 

INCIDENT  THERETO. 


MEREDITH  PRIZE  ESSAY  OF  THE  UNIVERSITY  OF   PENNSYLVANL-i 
FOR  THE  YEAR  1888. 


BY 

GUY    LE    R.    STEVICK, 

OF  THE  PHILADELPHIA  BAK. 


PHILADELPHIA: 

T.    &    J .   W.   JOHNSON    &    CO., 

535   CHESTNUT   STREET. 

1889. 


T 

St  its . 


COPTEIGHT    BT 

T.  &  J.  W.  JOHNSON   &  CO 
1889. 


COLLINS  PRINTING  HOUSE, 
705  Jayne  Street. 


CONTENTS. 


CHAPTER  I. 

UNINCORPORATED  ASSOCIATIONS  DEFINED — THEIR  ORIGIN 
AND  GROWTH. 

§  1.  Unincorporated  associations  defined. 

§  2.  Origin. 

§  3.  Pennsylvania  legislation. 

§  4.  Judicial  growth. 

CHAPTER  II. 

THE  STATUS  OF  UNINCORPORATED  ASSOCIATIONS. 

§  5.  Determination  of  their  status. 

§  6.  Distinction  between  unincorporated  associations  and  partnerships. 

§  7.  Unincorporated  associations  contemplating  no  charity. 

§  8.  Status,  inter  se  and  as  to  third  persons. 

§  9.  English  authorities. 
§  10.  Beneficial  societies,  early  English  view. 
§  11.  Modern  English  view. 
§  12.  Pennsylvania  view. 

§  13.  Several  Pennsylvania  cases  inconsistent  with  the  modern  view. 
§  14.  Conclusion. 

CHAPTER  III. 

LIABILITY  OF  MEMBERS. 

§  15.  Divisions  of  subject. 

§  16.  Principles  of  agency. 

§  17.  Liability,  inter  se  and  as  to  third  persons — Constitution  and  rules. 

§  18.  Liability  of  a  member  to  individuals. 

§  19.  Liability  of  a  member  to  the  association. 

§  20.  Liability  of  a  member  for  acts  of  the  association. 

§  21.  Liability  of  members  of  beneficial  associations. 

§  22.  Liability  of  a  member  for  acts  of  other  members. 

§  23.  Authority  of  a  committee. 

§  24.  Conclusion. 


IV  CONTENTS. 

CHAPTER  IV. 

MANAGEMENT  OF  AN  UNINCORPOKATED   ASSOCIATION CHANGE  OF 

RULES EXPULSION  OF  MEMBERS,  ETC. 

§  25.  Change  of  association  rules. 

§  2G.  Powers  of  majority. 

§  27.  Power  of  expulsion. 

§  28.  Summary  of  powers  of  expulsion. 

§  29.  Equitable  interference. 

§  30.  Bona  fide  exercise  of  power  of  expulsion. 

§  31.  Opportunity  of  defence. 

§  32.  Removal  from  positions  of  trust. 

§  33.  Rights  within  the  association. 

CHAPTER  V. 

ASSOCIATION  RIGHTS  AND  LIABILITIES PROPERTY — CONTRACTS 

FORMS  OF  SUIT. 

§  34.  Rights  of  property. 

§  35.  Disposition  of  property  after  dissolution. 

§  36.  Suits  against  members  individually. 

§  37.  Contractual  rights,  form  of  suits. 

§  38.  Suits  by  a  member  against  an  association. 

§  39.  Suits  by  an  association  against  a  member. 

§  40.  Suits  by  a  stranger  against  an  association. 

§  41.  Suits  by  an  association  against  a  stranger. 

§  42.  Basis  of  judicial  jurisdiction. 

§  43.  Liability  of  membership  to  execution  and  sale. 


TABLE  OF  CASES  CITED. 


THE    REFERENCE    IS    TO    PAGES. 


ENGLISH  CASES. 


Adams  vs.  O'Brien  11,  39 

vs.  Rippoii  11,  39 

Alexander  vs.  Alexander  17 

Attorney-General  vs.  Murdock  45,  47 


Beaumont  vs.  Meredith 
Beckman  vs.  Drake 
Broomley  rs.  Williams 
Buckley  rs.  Carter 
Burls  vs.  Smith 


2,  14,  25,  59 

8 

18,  62,  67 

15 

43 


Caldicott  vs.  Griffiths  16,  27 

Cockburn  vs.  Thompson     2,  15,  25,  69 
Cockerell  vs.  Aucompte  43 

Cox  vs.  Hickman  8 

Cross  vs.  Williams  8 

CuUen  vs.  Duke  of  Queensbury 

17,  25,  27,  43,  59 


Dawkins  vs.  Antrobus 
Dean  vs.  Bennett 
Delauney  vs.  Strickland 
Ellison  vs.  Bignold 

Fisher  vs.  Keane 
Flemyng  vs.  Hector 


Gaflfrs.  Evans 
Gardner  vs.  Freemouth 
Gray  vs.  Pearse 


45,  51 

53 

17,  33,  43 

15 

48,  53,  63 
11,  27,  33,  34, 
39,42 

18 
52 
17 


Harrison  vs.  Millar  18 

Harvey  r.s.  Beckwith  18 

Hopkinson  vs.  Marquis  of  Exeter 

52,  63 


Innes  vs.  Wylie 


53 


Lees  i\i.  Smith  18 

Lloyd  vs.  Loaring  2,  14,  25 

London  Marine  Insurance  Co.,  In  re 

16,  27 
Lyttleton  vs.  Blackburn         34,  52,  71 


Pearce  vs.  Piper            2,  15,  25 

27, 

62 

Queen  rs.  Robinson 

17, 

20 

vs.  Waite 

17, 

20 

Raggett  vs.  Bishop 

rs.  Musgrave              34,  35, 

35, 
63, 

66 
66 

Redway  vs.  Sweeting 
Reeve  rs.  Parkins 

17 
15 

Regina  rs.  Murphy 

vs.  Wooley 
Regnell  i^s.  Lewis 

20 
20 
17 

Rex  vs.  Hall 

20 

Richardson-Gardner  vs.  Freemantle 

51, 

63 

Rlgby  vs.  Connol 

71 

St.  James  Club,  In  re  2,  11,  12,  27,  43 
St.  George  Building  Society,  In  re  17 
Strong  vs.  Harvey  15,  27 


Todd  rs.  Emley 


Waugh  rs.  Carver 
Willis  rs.  Child 
Wood  rs.  Finch 


2,  11,  12,  27,  33, 
41,  42,  59 

10,  33 
53 
43 


PENNSYLVANIA  CASES. 


App  vs.  Lutheran  Congregation 

4,  42,  70 
Ash  vs.  Guie     18,  24,  28,  34,  37,  57,  60 


Babb  rs.  Reed 

22,  25,  27,  29,  31 

Bauer's  Appeal 

70 

Beasly  vs.  Allyn 

56,  72 

Beatty's  Appeal 

43,  73 

Beech  vs.  Harris 

50 

Blenon's  Estate 

23 

Brown  rs.  Griffin  55,  66,  69 

rs.  Lutheran  Church  2,  70 

Butchers'  Beneficial  Association        50 

Chambers  vs.  Calhoun  36,  59,  60 

Commonwealth  rs.  Green  52 

vs.  St.  Patrick's  Ben.  Soc'y        49 

rs.  Volz  •  2, 20,  28,  65 

Edinboro  Academy  rs.  Robinson        35 


VI 


TABLE    OF    CASES   CITED. 


[The  reference  is  to  pages.] 


Kiclibanm  vs.  Irons  8,  20,  28,  32, 

33,  35,  59 
Evans  vs.  Philadelphia  Club  50 


IS.  Wistar 

73 

Frey  vs.  Fidelity  Lodge 

52 

(iass's  Appeal 

68 

Henry  vs.  Dietrich 
Hess  vs.  Wertz 

4, 

46 

25, 

67 

27 

Riser's  Appeal 
Kurz  vs.  Eggert 

29, 

39, 

68 
65 

Leech  vs.  Harris 

vs.  Leech 
Lowry  is.  Reed 

19,  28, 

48, 

49, 

63 

73 

2 

MacDowell  vs.  Ackley  48 

Magill  vs.  Brown  3,  4,  5 

Maguire's  Estate  18,  62,  69 

Means  cs.  Presbyterian  Congregation  4 
Metropolitan  Base  Ball  Club  vs.  Sim- 
mons 21,  28,  59,  70 


O'Hara  vs.  Stack 


52,  72 


Paul  vs.  Keystone  Lodge       29,  31,  39, 

61,  64 
Phipps  vs.  Jones  4,  36,  61,  62 

Presbyterian  Congregation  vs.  Johnson 

4,  46 

Protchett  vs.  Schaefer  22,  24,  27, 

28,  29,  31,  38,  64 

Ramsey's  Appeal  4 

Ridgely  vs.  Dobson  2,  25,  28 

Ryerss  vs.  Congregation  of  Blossburg 
36,  61,  62,  70 

Schriber  vs.  Rapp  19,  28,  63 

Sirjgerly  vs.  Johnson  63,  73 

Skilton  vs.  Webster  4 

Sperry's  Appeal  53 

Sutter  vs.  Dutch  Church  2,  46 

Thomas  vs.  Elmaker  18,  26,  27 

Thompson  vs.  Adams  34,  73 

Trustees  vs.  Sturgeon  4 

Unangst  vs.  Shortz  2,  4,  46,  66 

Witman  vs.  Lex  3,  4,  5 

Witmer  vs.  Schlatter  25,  27 


Baptist  Association  vs.  Hart's  Execu- 
tors, 4  Wheaton.  28  5 
Burt  vs.  Lathrop,  52  Mich.  106          20 

Ingles  vs.  Trustees,  3  Peters,  114        5 

Livingstone  vs.  Lynch,  5  Johns.  Chan. 
573  58 


MISCELLANEOUS  CASES. 

Richmond  vs.  Judy,  6  Mo.  App.         20 


Vidal  vs.  Executors  of  Girard,  2  How. 

128  4 

White  vs.  Brownell,  3  Abbott's  Prac- 
tice Rep.  N.  S.  318  19 


ACTS  OF  ASSEMBLY,  CONSTITUTIONS,  ETC. 


Act  of  1712  4 

of  1715  4 

of  January,  1831  4 

Constitution  of  1776  4 

of  I79U  4 

Act  of  17th  Feltfuary,  1818  4 

of  21st  March,  1836  1 

of  15th  June,  1836  5 

Bradford's  Laws  4 


Smith's  Laws  4 

Act  of  16th  June,  1836  4,  17,  22 

Constitution  of  1838  4 

Act  of  2d  August,  1842  4 

of  26th  April,  1855  4 

of  2d  June, 1874  1 

of  28th  April,  1876  5,  39,  52 

of  20th  June,  1883  5,  48 


UNINCORPORATED  ASSOCIATIONS. 

IN  PENNSYLVANIA. 


CHAPTER    I. 

UNINCORPORATED  ASSOCIATIONS  DEFINED— THEIR 
ORIGIN  AND  GROWTH. 

§  1.  Unincorporated  associations,  in  the  most  general 
sense  of  the  term,  include  every  union  of  individuals  for 
a  common  purpose,  which  is  not  incorporated.  Many  of 
these  associations  have  acquired,  either  at  common  law  or 
by  statute,  peculiar  characters ;  for  instance,  at  common 
law  we  have  partnerships,  principal  and  agent,  and  the 
domestic  relations;  by  statute, limited  partnerships,^  joint 
stock  companies,^  etc.  But  there  are  a  great  many  unin- 
corporated associations  which  fall  under  none  of  these 
particular  heads,  and  it  is  the  legal  status  of  these  asso- 
ciations which   we  shall  endeavor  to  determine  in  this 

•  Act  21  March,  1836,  P.  L.  143. 

^  A  joint-stock  company  such  as  is  contemplated  by  the  English 
statute  of  7  and  8  Vict.  110,  does  not  exist  in  Pennsylvania.  The 
nearest  approach  in  Pennsylvania  to  such  a  company  is  the  partner- 
ship association  created  by  the  act  of  2  June,  1874,  which  differs  es- 
sentially (i.  e.  in  the  transferability  of  the  shares)  from  the  English 
company.  The  general  opinion  is  that  unincorporated  joint-stock 
companies  with  transferable  shares  are  illegal  at  common  law.  Mr. 
Lindley  denies  this.  Lindley  on  Partnership,  Ewell's  1st  Am.  Ed. 
192,  and  notes. 
1 


2  UNINCORPORATED  ASSOCIATIONS. 

essay.  A  club,^  a  literary  society,^  a  beneficial  associa- 
tion,' a  church  or  charitable  organization,'*  are  examples 
of  such  associations.  It  will  be  sufficiently  accurate  to 
define  an  unincorporated  association,  in  the  sense  in 
which  the  term  is  used  in  this  essay,  as  a  union  of  indi- 
viduals, unincorporated,  for  a  common  purpose,  not  profit, 
and  the  relation  of  whose  members  to  each  other  is  either 
expressed  by  articles  of  association  or  implied  from  the 
nature  of  the  union. 

§  2.  Unincorporated  associations  are  of  very  early  ori- 
gin, but  it  is  only  within  late  years  that  they  have  been 
recognized  by  our  courts  of  justice.  By  the  civil  law 
such  associations  constituted  what  were  called  tmiversitates 
or  collegia,  and  the  mere  act  and  voluntary  association  of 
their  members  created  a  corporation ;  provided,  such  con- 
vention was  not  contrary  to  law,  for  then  it  was  illicitum 
collegium!'  They  were  adopted  also  by  the  canon  law, 
and  from  them  our  corporations  are  derived.  Until  a 
comparatively  late  date  the  English  Courts  would  not 
recognize  the  existence  of  an  unincorporated  association. 
Lord  Eldon  was  particularly  opposed  to  them.^  They 
had  no  standing  in  court  except  as  individuals.^  Sir 
AVilliam    Blackstone    speaks   of   their   impotency   thus: 

'  In  re  St.  James  Club,  2  DeG.  M.  &  G.  383 ;  Todd  vs.  Emley, 
8  M.  &  W.  505. 

""  Ridgely  vs.  Dobson,  3  W.  &  S.  118. 

^  Lowry  vs.  Reed,  3  Brewster,  452 ;  Coram,  vs.  Volz,  14  W.  N.  C.  289. 

*  Brown  vs.  Lutheran  Church,  11  Harris,  459;  Sutter  vs.  Dutch 
Church,  6  Wright,  503 ;  Unangst  vs.  Shortz,  5  "Wharton,  506. 

*  1  Bl.  Com.  469-472. 

®  Lord  Eldon's  decisions  in  Beaumont  vs.  Meredith,  2  Ves.  &  Bea. 
180;  Lloyd  vs.  Loaring,  6  Ves.  773;  Pearce  vs.  Piper,  17  Id.  1; 
Cockburn  vs.  Thompson,  16  Id.  321  ;  Lindley  on  Partnership,  Ewell's 
1st  Am.  ed.  193. 

'  Lloyd  vs.  Loaring,  6  Ves.  773. 


UNINCORPORATED  ASSOCIATIONS.  3 

"  Let  US  consider  the  case  of  a  college  in  either  of  our 
universities,  founded  ad  studentnm  et  ormuhim,  for  the 
encouragement  and  support  of  religion  and  learning.  If 
this  were  a  mere  voluntary  assembly,  the  individuals 
which  compose  it  might  indeed  read,  pray,  study,  and 
perform  scholastic  exercises  together,  so  long  as  they  could 
agree  to  do  so ;  but  they  could  neither  frame  nor  receive 
any  laws  or  rules  of  their  conduct,  none  at  least  which 
would  have  any  binding  force,  for  want  of  a  coercive 
power  to  create  a  sufficient  obligation."' 

But  in  modern  times  the  popularity  of  and  almost  ne- 
cessity for  such  organizations,  have  forced  the  courts  and 
legislatures  to  take  notice  of  them.  In  former  times- the 
chief  incentive  to  the  association  of  individuals  was  reli- 
gion, but  as  all  bishops,  parsons,  vicars,  church-wardens, 
and  some  others  have  even  been  held  by  common  law  to 
have  been  corporations,  virtute  officii,  the  necessity  for 
unincorporated  associations  was  greatly  lessened.  At  the 
settlement  of  this  country,  the  simplicity  which  marked 
the  lives  of  our  forefathers  enabled  them  to  do  without 
many  institutions  that  in  the  present  state  of  society 
are  absolutely  indispensable.  Corporations  were  almost 
unknown.^  Unincorporated  associations  became  a  ne- 
cessity. The  departure  from  the  English  Church  system, 
the  introduction  of  a  new  political  system,  and  the  de- 
velopment of  the  country,  gave  rise  to  and  favored  the 
rapid  growth  of  religious,  political,  and  social  societies. 

§  3.  From  the  beginning  unincorporated  religious  so- 
cieties were  the  objects  of  care  to  Pennsylvania  legislators. 
After  long  and  bitter  controversy,  a  law  was  twice  passed 

^  Blackstone's  Commentaries,  467,  468. 

^  Witman  vs.  Lex,  17  S.  &  R.  91.  The  history  of  the  Society  of 
Quakers  presents  no  instance  of  a  corporation,  Magill  vs.  Brown, 
Brightly's  N.  P.  Reports,  366. 


4  UNINCORPORATED  ASSOCIATIONS. 

(1712  and  1715)  by  the  Assembly  of  Pennsylvania,  and 
twice  repealed  by  the  Crown,  entitled  :  "  An  act  empower- 
ing religious  societies  to  buy,  hold,  and  enjoy  lands,  tene- 
ments, and  hereditaments."^  A  favorable  opportunity 
again  presented  itself,  and  the  religious  society  bill  (much 
modified)  was  finally  adopted  in  January,  1731.  Other 
privileges  and  rights  were  expressly  reserved  and  protected 
by  the  Constitutions  of  1776,  1790,  and  1838.^ 

Religious  associations  have  always  been  recognized  in 
Pennsylvania,  and  since  the  act  of  1731,  have  had  power 
to  hold  land,  and  to  acquire  rights  by  contract.^  The 
Constitution  of  1776  declared  that  "societies  for  the  ad- 
vancement of  learning  or  religion,  or  for  other  pious  and 
charitable  purposes,  shall  be  encouraged  and  protected  in 
the  enjoyment  of  the  privileges,  immunities,  and  estates 
which  they  were  accustomed  to  enjoy  and  could  of  right 
have  enjoyed  under  the  laws  and  former  Constitution  of 
this  State.'" 

The  act  of  17th  Feb.  1818,  recognized  such  associa- 
tions.^ The  act  of  2d  August,  1842,  contained  provisions 
similar  to  those  of  the  act  of  1731.  The  act  of  26th  April, 
1855,  limited  the  amount  of  property  which  unincorpo- 
rated associations  for  literary,  religious,  and  charitable 

'  Bradford's  Ed.  of  the  Laws,  160.  See  H.  Binney's  argument 
in  Girard  Will  Case. 

"  Magill  vs.  Brown,  Brightly's  N.  P.  Reports,  346-353 ;  Unangst 
vs.  Shortz,  5  "Wharton,  506-519. 

*  Phipps  vs.  Jones,  8  Harris,  263,  J.  Lowrie's  opinion. 

*  Sec.  45,  5  Smith's  Laws,  430. 

*  That  it  applies  to  unincorporated  societies,  see  Witman  vs.  Lex, 
17  S.  «fe  R.  88;  Unangst  vs.  Shortz,  5  Wharton,  506;  Presby.  Congre- 
gation vs.  Johnson,  1  W.  &  S.  25;  App  vs.  Luth.  Cong.  6  Pa.  St.  201 ; 
Trustees  vs.  Sturgeon,  9  Id.  321;  Henry  vs.  Deitrich,  84  Id.  286; 
Ramsey's  App.,  88  Id.  60 ;  Skilton  vs.  Webster,  Brightly,  203 ;  Means 
vs.  Presby.  Cong.,  3  W.  &  S.  303. 


UNINCORPORATED  ASSOCIATIONS.  5 

purposes  could  hold.  The  act  of  28th  April,  1876,  limi- 
ted the  liability  of  the  members  of  unincorporated  bene- 
ficial societies,  and  the  act  of  2()th  June,  1883,  provided 
for  the  disposition  of  their  property  upon  their  dissolution 
under  certain  circumstances. 

The  great  act  which  recognized  the  authority  of  courts 
of  equity  over  unincorporated  associations  was  the  act  of 
15th  June,  1836,  sec.  13.  It  declared  that  the  several 
courts  of  common  pleas  shall  have  the  jurisdiction  and 
powers  of  a  court  of  chancery,  so  far  as  relates  to  "the 
supervision  and  control  of  all  corporations  other  than 
those  of  a  municipal  character,  and  unincorporated  socie- 
ties or  associations,  and  partnerships."  But  it  is  not  to 
this  statute  that  the  chancery  jurisdiction  over  unincor- 
porated associations  is  to  be  wholly  attributed.  Asso- 
ciations for  charitable  uses  had  been  already  recognized.^ 
In  1833  Judge  Baldwin,  sitting  in  equity,  declared 
that  "to  deny  to  bodies  united  without  a  charter  any 
rights  of  property  which  could  be  enjoyed  by  a  corporate 
body  would  be  in  direct  opposition  to  both  the  Constitu- 
tion of  the  State  and  Union,  and  the  custom  of  the 
Province."^ 

§  4.  Although  the  legislative  enactments  in  Pennsyl- 
vania upon  this  subject  have  been  numerous,  the  growth 
of  unincorporated  associations  is  not  clearly  defined  by 
statutes.  These  enactments  have  been  for  the  most  part 
only  declaratory  of  rights  or  remedies  which  had  previ- 
ously been  determined  by  judicial  decisions. 

The  courts  at  first  refused  to  recognize  unincorporated 

1  Witman  vs.  Lex,  17  S.  &  R.  88;  Magill  vs.  Brown,  Bright.  N. 
P.  Rep.  346-353.  Contra  in  Baptist  Ass.  vs.  Hart's  Ex'rs,  4  Wlieat. 
28;  Ingles  vs.  Trustees,  3  Pet.  114. 

^  Magill  vs.  Brown,  Bright.  N.  P.  Rep.  366. 


6  UNINCORPORATED  ASSOCIATIONS. 

associations.  They  could  only  obtain  a  legal  standing  as 
partnerships.  Religious  and  charitable  associations  were 
the  first  to  obtain  recognition,  then  literary,  and  finally 
all  associations  not  contrary  to  the  law  of  the  land  were 
recognized  by  the  courts.  Thus  gradually  did  these  asso- 
ciations secure  a  foothold,  until,  at  the  present  time,  their 
standing  is  firmly  established.  The  rights  of  members 
of  unincorporated  associations  are  as  sacred  as  any  other 
rii^-hts. 


UNINCORPORATED  ASSOCIATIONS. 


CHAPTER    II. 

THE  STATUS  OF  UNINCORPORATED  ASSOCIATIONS. 

§  5.  The  rules  governing  unincorporated  associations 
have  been  determined  largely  by  judicial  decisions.  This 
judicial  as  distinguished  from  a  legislative  method  is  per- 
haps the  surer  method  of  establishing  just  and  good  laws; 
but  it  is  necessarily  a  gradual  method,  and  the  development 
of  laws  from  judicial  decisions  is  not  always  constant. 

It  is  from  these  judicial  decisions  that  the  status  of  un- 
incorporated associations  is  to  be  determined.  What  rules 
of  law  govern  questions  concerning  them  1  Are  such 
questions  decided  upon  the  laws  of  corporations,  of  part- 
nerships, of  principal  and  agent,  of  tenants  in  common, 
or  have  they  a  set  of  rules  applicable  to  themselves  ?  In 
some  cases  the  laws  of  partnership  apply,  in  some  the 
rules  of  tenancy  in  common,  in  others  corporation  law  is 
recognized,  and  in  a  great  many  cases  those  laws  which 
regulate  the  relation  between  principal  and  agent  are  ap- 
phcable,  but  none  of  them  will  apply  in  all  cases.  The 
rules  governing  unincorporated  associations  are  composed 
of  principles  taken  from  all  of  these  and  adapted  to  the 
particular  circumstances  of  such  cases.  They  are  not  dif- 
ferent from  the  general  body  of  our  laws,  but  they  are  an 
application  of  the  principles  of  those  laws  to  a  particular 
set  of  cases,  and  as  such  the  decisions  have  acquired  a 
similarity  which  entitles  them  to  a  separate  consideration. 

§  6.  The  chief  bone  of  contention  in  fixing  the  status 


8  UNINCORPORATED  ASSOCIATIONS. 

of  these  associations  is  whether  they  are  to  be  treated  as 
partnerships  or  not.  What  is  a  partnership  1  Many  defi- 
nitions of  a  partnership  have  been  given,  and  all  contain 
the  essential  ideas  of  "  trade  and  profit."  Mr.  Lindley, 
after  examining  a  great  many  definitions  of  the  term,  con- 
cludes: "An  agreement  that  something  shall  be  attempted 
with  a  view  to  gain,  and  that  the  gain  shall  be  shared  by 
the  parties  to  the  agreement  is  the  leading  feature  of  every 
definition  of  the  term."^  An  association  which  is  unin- 
corporated may  be  for  trade  and  profit,  and  if  it  is,  it  is 
a  partnership  ;  but  an  unincorporated  association,  such  as 
is  contemplated  in  this  essay,  is  not  for  trade  and  profit, 
and  we  conceive  that  it  should  not  be  treated  as  a  part- 
nership. 

The  members  of  an  unincorporated  association  have  by 
their  articles  of  association  entered  into  a  contract  among 
themselves  and  delegated  to  each  other  certain  powers. 
These  powers  and  the  relations  of  the  members  are 
founded  upon  the  principles  of  agency.  The  only  con- 
nection between  the  laws  of  partnerships  and  the  laws 
governing  unincorporated  associations  is,  that  both  are 
primarily  derived  from  the  law  of  agency.^  The  import- 
ance of  this  distinction  is  evident  when  we  consider  the 
manner  in  which  the  individual  liability  of  members  is 
determined.  If  liabilities  are  to  be  fastened  upon  the 
members  of  an  unincorporated  association,  it  must  be  by 
reason  of  the  acts  of  those  members  themselves,^  or  by 
reason  of  the  acts  of  their  agent,  and  no  agency  is  implied 

'  Lindley  on  Partnership,  Ewell's  2d  Am.  ed.  1. 

*  Beckham  vs.  Drake,  9  M.  &  W.  98,  opinion  by  Parke,  B.  They 
are  both  branches  of  the  law  of  agency.  Lord  "Wensleydale  and  Lord 
Cranworth  in  Cox  vs.  Hickman,  8  H.  L.  C.  260. 

'  Cross  vs.  Williams,  7  H.  &  N.  675  ;  2  Kent  Com.  630  ;  Eichbaum 
vs.  Irons,  6  W.  &  S.  07. 


UNINCORPORATED  ASSOCIATIONS.  9 

from  the  mere  fact  of  association  ;^  but  if  an  association  of 
individuals  becomes  a  partnership,  a  very  extended  agency 
is  implied  from  this  fact. 

§  7.  Before  considering  this  question  more  fully  let  us 
look  at  a  point  which  has  caused  some  confusion.  In  the 
course  of  the  growth  or  change  in  the  legal  standing  of 
unincorporated  associations  a  line  was  drawn  between 
charitable  associations  and  partnerships.  Those  unincor- 
porated associations  which  were  not  charitable  could  only 
obtain  legal  standing  as  partnerships. 

Although  the  general  tone  of  our  modern  decisions  has 
done  away  with  this  idea,  we  find  it  running  through 
several  of  our  later  Pennsylvania  cases.  A  distinction 
exists  between  unincorporated  associations  for  charitable 
uses  and  those  not  for  such  uses,  and  it  is  of  much  im- 
portance. Upon  it  depend  many  questions  which  arise 
under  the  head  of  charitable  uses,  but  it  is  of  no  import- 
ance in  determining  whether  an  association  is  a  partner- 
ship or  not.  The  distinction  is  not  peculiar  to  unincorpo- 
rated associations.  They  are  only  a  part  of  a  larger  class 
to  which  it  applies. 

Associations  not  charities,  and  merely  for  private  ad- 
vantage, may  or  may  not  be  partnerships.  If  the  associa- 
tion is  for  profit,  it  is  a  partnership ;  if  it  is  for  pleasure 
or  any  object  not  profit,  it  is  not  a  partnership.  A  chari- 
table association  cannot  well  have  business  for  a  means 
and  profit  for  an  end,  and  therefore  cannot  well  be  a 
partnership,  but  the  line  which  cuts  out  partnerships 
from  unincorporated  associations  leaves  not  only  chari- 
table but  many  other  associations. 

§  8.  A  distinction  may  exist  between  the  status  of  an 
association  considered  with  reference  to  its  members,  and 

'  Lindley  on  Partnership,  Ewell's  2d  Am.  ed.  50,  and  notes. 


1  0  UNINCORPORATED  ASSOCIATIONS. 

its  status  considered  with  reference  to  persons  not  mem- 
bers. As  between  the  members  the  articles  of  association 
and  tlie  purposes  of  the  union  are  the  criteria  by  which 
the  character  of  the  association  is  to  be  determined,  but 
as  to  third  parties  this  may  be  modified  by  acts  of  the 
members  which  would  justly  lead  others  to  suppose  that 
their  relationship  is  different  from  that  which  actually 
exists.  So  that  although  the  members  may  as  between 
themselves  be  only  members  of  an  unincorporated  asso- 
ciation, they  may  by  their  acts  so  hold  themselves  out  to 
other  parties  as  to  be  partners  with  reference  to  those 
parties.^  But  too  much  importance  must  not  be  placed 
upon  this  distinction.  In  many  cases  this  difference  has 
been  mentioned  where  the  distinction  was  merely  verbal. 
Unless  the  members  so  act  as  to  justify  others  in  believing 
that  a  different  relationship  exists  from  that  established 
by  the  agreement  of  the  members,  that  agreement  will 
determine  the  relationship  as  well  to  third  persons  as 
between  themselves. 

§  9.  Although  the  English  decisions  are  not  of  binding 
authority  with  us,  they  are  of  great  weight ;  and  this  is 
especially  true  in  considering  a  subject  which,  like  unin- 
corporated associations,  has  been  so  little  modified  by 
statute,  and  the  cases  concerning  which,  owing  to  the 
comparatively  recent  importance  of  the  subject,'' have  left 
untouched  many  important  branches  of  it.  In  England 
these  cases  have  been  more  numerous,  and  have  been 
considered  with  a  care  which  deserves  our  attention, 
especially  in  considering  any  point  which  has  not  been 
determined  in  this  country. 

The  three  principal  English  cases  upon  the  subject  of 

'  Waugh  vs.  Carver,  2  H.  Bl.  235 ;  1  Smith's  Lead.  Ca.  131G,  Hare 
&  Wallace's  ed. 


UNINCORPORATED  ASSOCTATIONS.  11 

unincorporated  social  organizations  were  Flemyng  vs. 
Hector,^  Todd  vs.  Emley,^  and  Iji  re  St.  James  Club.^ 
The  first  two  considered  the  relation  of  the  associations  to 
third  persons,  and  the  last,  of  the  members  of  the  asso- 
ciation inter  se. 

In  Flemyng  vs.  Hector  (1836),  the  defendants  were 
members  of  the  Westminster  Reform  Club,  an  unincorpo- 
rated social  club,  and  the  plaintiffs  were  merchants  who 
had  furnished  provisions  and  material  for  the  use  of  the 
club  on  the  order  of  a  committee  appointed  "to  manage 
the  affairs  of  the  club."  The  action  was  brought  to  col- 
lect the  amount  of  the  plaintiffs'  bill.  The  Court  decided 
that  the  defendants  were  not  liable.     It  was  held : — 

I.  That  the  club  was  not  a  partnership,  and  that  the 
case  stood  on  the  ground  of  principal  and  agent. 

II.  That  the  authority  of  the  committee  to  bind  the 
members  depended  upon  the  constitution  of  the  club, 
which  was  to  be  found  in  its  own  rules. 

III.  That  in  this  case  it  could  not  be  inferred,  from 
these  rules  that  they  intended  the  committee  to  deal 
upon  credit,  and  therefore  the  defendants  were  not  bound. 

As  to  whether  this  was  a  partnership  or  not.  Lord 
Abinger,  C.  B.,  said:  "I  had  thought,  but  without  much 
consideration,  at  the  assize,  that  this  sort  of  institutions 
were  of  such  a  nature  as  to  come  under  the  same  view  as 
a  partnership,  and  that  the  same  incidents  might  be  ex- 
tended to  them ;  that  where  there  was  a  body  of  gentle- 
men forming  a  club  and  meeting  together  for  one 
common  object,  what  one  did,  in  respect  to  the  society, 
bound  the  others,  if  he  had  been  requested  and  had  con- 

^  2  M.  «fe  W.  171.  Adams  vs.  O'Brien,  and  Adams  vs.  Rippon 
were  similar  cases  tried  at  the  same  time. 

2  8  M.  &  W.  505.  '  2  DeG.  M.  «fc  G.  383. 


12  UNINCORPORATED  ASSOCIATIONS. 

sentcd  to  act  for  them.  Several  cases  have  been  cited  in 
the  course  of  the  argument  which  do  not  apply,  with  the 
exception  of  one  of  them,  to  societies  of  this  nature. 
Trade  associations  stand  on  a  very  different  footing. 
When  persons  engage  in  a  community  of  profit  and  loss, 
a  partnership,  one  partner  has  the  right  of  property  for 
the  whole ;  so  any  partner  has  a  right  in  any  ordinary 
transaction,  unless  the  contrary  be  clearly  shown,  to  bind 
the  partnership  by  a  credit ;  he  might  accept  a  bill  of  ex- 
change in  the  name  of  the  firm,  and  as  between  the  firm 
and  strangers,  the  partnership  would  be  bound,  although, 
there  might  be  an  understanding  in  the  firm  that  he 
was  not  to  accept.  It  appears  to  me  that  this  case  must 
stand  upon  the  ground  on  which  the  defendant  put  it,  as 
a  case  between  principal  and  agent."  Barons  Parke  and 
Gurney  agreed  with  the  view  expressed  by  Lord  Abinger. 

Todd  vs.  Emley  (1841)^  was  a  very  important  case,  and 
was  tried  three  times.  It  was  an  action  of  assumpsit 
brought  to  recover  the  price  of  wine  supplied  by  the 
plaintiff's  to  the  Alliance  Club  (an  unincorporated  social 
organization)  during  the  time  the  defendants  were  mem- 
bers of  the  committee  of  the  club.  A  verdict  was  twice 
set  aside  because  the  liability  of  the  defendants  was  estab- 
lished upon  the  principles  of  partnership.  One  member 
could  not,  by  dealing  upon  credit,  bind  the  others.^ 
C.  J.  Tindal,  before  whom  the  case  was  finally  tried, 
clearly  distinguished  it. from  a  partnership. 

In  re  St.  James  Club  (1852)^  arose  upon  an  appeal 

^  Law  Journal,  vol.  10,  Exch.  Jan.  19th,  1841,  page  161  (first 
argument),  and  May  25tli,  1841,  page  2G2  (second  argument)  ;  8  M. 
&  AY,  505  (last  argument). 

^  Opinions  of  Abinger,  C.  B.,  and  Barons  Parke  and  Alderson. 
Law  Journal,  vol.  10,  Exch.  Jan.  19th,  1841,  page  161. 

»  2  DeG.  M.  &  G.  383. 


UNINCORPORATED  ASSOCIATIONS.  13 

of  a  member  of  the  St.  James  Club  from  an  order  of  the 
Vice-Chancellor,  made  on  the  petition  of  several  mem- 
bers, that  the  club  should  be  wound  up  under  the  acts  of 
1848-1849  for  the  winding  up  of  partnerships,  and  it 
was  decided  that  this  club  was  not  within  the  acts.  Said 
Lord  Chancellor  St.  Leonards :  "  Bearing  in  mind  that 
the  individuals  who  form  a  club  do  not  constitute  a  part- 
nership, nor  incur  liability  as  such,  I  think  associations  of 
that  nature  are  not  within  the  winding-up  acts." 

§  10.  A  distinction  has  been  drawn  in  some  of  the 
cases  between  beneficial  associations  and  other  unincorpo- 
rated associations.  Beneficial  associations  are  such  as 
contemplate  the  granting  of  benefits  or  assistance  to  such 
persons  only  who  may  have  been  members  of  and  con- 
tributors to  the  funds  of  the  aggregate  body.^ 

One  of  the  chief  points  in  dispute  in  determining  the 
status  of  these  associations  is  whether  beneficial  associa- 
tions are  to  be  considered  as  partnerships,  or  are  to  be 
classed  with  unincorporated  associations.  In  some  cases 
these  associations  have  been  looked  upon  as  in  the  nature 
of  associations  for  profit,  and  hence,  as  partnerships.  The 
object  of  beneficial  associations  is  to  insure  the  members 
against  want,  to  prevent  loss,  and  the  prevention  of  loss 
was  regarded  as  in  the  nature  of  profit.  On  the  other 
hand,  the  better  decisions,  and  those  which  the  American 
cases  follow,  consider  profit  as  something  more  than  pro- 
tection. It  is  positive  gain.  According  to  this  view,  pure 
beneficial  societies,  unconnected  with  any  purposes  of 
trade  or  profit,  are  to  be  placed  in  the  same  category 
with  other  unincorporated  associations.  We  will  consider 
this  question  at  some  length,  both  because  of  its  intrinsic 
importance,  and  because  it  will  aff'ord  a  convenient  oppor- 

^  Wordsworth  on  Joint  Slock  Companies,  ch.  iv.,  page  154. 


14  UNINCORPORATED  ASSOCIATIONS. 

tunity  of  examining  some  of  the  characteristics  of  unin- 
corporated associations. 

Lord  Eldon  refused  to  consider  beneficial  associations 
except  as  partnerships.  One  of  the  earliest  cases  was 
that  of  Lloyd  vs.  Loaring  (1802).^  A  bill  was  filed  by 
Lloyd  and  others  in  behalf  of  the  Caledonian  Lodge  of 
Free  Masons,  of  which  they  were  members,  against  the 
defendants,  also  members  of  the  lodge,  praying  that  the 
defendants  be  decreed  to  deliver  up  certain  articles.  Lord 
Eldon  refused  to  hear  the  bill,  because  he  would  not  take 
notice  of  the  plaintiffs  as  a  society,  but  allowed  them  to 
amend  and  sue  as  individuals.  Said  he  :  "I  am  alarmed 
at  the  notion  that  these  voluntary  societies  are  to  be  per- 
mitted to  state  all  their  laws,  forms,  and  constitutions 
upon  the  record,  and  then  tell  the  Court  they  are  indi- 
viduals. ...  I  desire  to  be  understood  distinctly.  I  do 
not  think  the  Court  ought  to  permit  persons  who  can  only 
sue  as  partners  to  sue  in  a  corporate  character,  and  that  is 
the  effect  of  this  bill."  Nothing  could  better  illustrate 
the  different  views  taken  of  unincorporated  associations 
in  Lord  Eldon's  day  and  our  day.  At  the  present  day, 
these  societies  are  allowed  to  state  their  laws,  forms,  and 
constitutions  on  the  record,  and  they  are  the  chief  evi- 
dence upon  which  the  case  is  decided.  Bills  are  repeatedly 
brought  in  the  form  forbidden  in  that  case. 

Beaumont  vs.  Meredith  (1814)^  is  the  case  usually 
cited  in  support  of  this  docrine.  A  bill  was  filed  by  some 
members  of  a  society  called  "  The  Beneficial  Union  So- 
ciety," an  unincorporated  association  for  the  relief  of  its 
members  in  the  case  of  sickness  and  for  other  beneficial 
purposes,  against  seven  members  of  the  same  society,  pray- 
ing an  account  and  injunction.     The  bill  was  dismissed 

'  6  Ves.  773.  '  3  Ves.  &  Beames,  321. 


UNINCORPORATED  ASSOCIATIONS.  15 

because  of  the  nonjoinder  of  the  proper  parties  defendant. 
Lord  Eldon  said :  "  This  society  can  be  considered  in  this 
Court  only  as  a  partnership,  and  neither  has  or  can  have 
a  corporate  character."^  The  point  which  seems  to  have 
been  brought  to  the  attention  of  the  Court  in  tliis  case 
and  in  Lloyd  vs.  Loaring  was  whether  the  association  had 
a  corporate  capacity  or  not.  As  between  a  corporation 
and  a  partnership  such  a  society  undoubtedly  more  re- 
sembles a  partnership.  Lord  Eldon  expressed  the  same 
opinion  concerning  unincorporated  beneficial  associations 
in  a  number  of  cases.^ 

§  11.  The  later  English  cases  have  however  departed 
from  this  view,  and  are  disposed  to  regard  the  status  of 
such  associations  as  depending  upon  the  principles  and 
purposes  of  their  organization.  If  they  do  not  contem- 
plate trade  and  profit,  they  are  not  partnerships.  Nor  will 
the  mere  acquisition  of  property  or  even  of  profit,  if  it  be 
only  an  incident  to  the  promotion  of  their  real  purpose, 
change  their  character. 

In  Strong  vs.  Harvey  (1825)^  an  action  brought  by  a 

'  It  may  be  material  to  notice  the  observation  made  at  the  foot 
of  the  report  of  the  case:  "  The  Lord  Chancellor  refused  to  give  costs, 
and  observed  that  he  did  not  allude  to  friendly  societies  in  general ; 
but  the  objects  of  these  societies  are  of  a  nature  that  no  Court  of  Jus- 
tice could  execute."  At  the  present  day  our  courts  continually  take 
cognizance  of  such  societies,  and  see  to  the  execution  of  their  objects. 

*  In  Cockburn  vs.  Thompson,  16  Vesey,  321,  the  Philanthropic 
Annuity  Institution  was  spoken  of  as  a  partnership.  Pierce  vs.  Piper, 
17  Vesey,  1;  Reeve  vs.  Parkins,  2  J.  &  W.  390;  and  Buckley  r^. 
Carter,  17  Vesey,  15,  were  cases  of  similar  societies,  and,  although  the 
point  did  not  arise  in  the  case,  they  were  afterwards  alluded  to  by 
Lord  Eldon  as  cases  of  partnership.  In  Ellison  vs.  Bignold,  2  J.  & 
W.  503,  the  same  Chancellor  said  that  the  National  Union  Fire  Asso- 
ciation must  be  looked  upon  as  a  general  partnership. 

»  11  Eng.  Com.  Law,  3  Bing.  303. 


16  UNINCORPORATED  ASSOCIATIONS. 

member  of  an  unincorporated  association  of  ship-owners, 
for  the  mutual  insurance  of  each  other's  ships,  against 
another  member  to  recover  his  proportion  of  a  loss  was 
sustained.  Of  the  nature  of  this  association  Burroughs, 
J.,  said :  "  This  association  does  not  constitute  a  partner- 
ship, because  there  is  no  joint  profit  and  loss  to  be  divided 
among  the  members." 

In  re  London  Marine  Insurance  Company  (1869)^ 
was  the  case  of  an  unincorporated  mutual  insurance  com- 
pany. Upon  winding  up  the  association,  claims  were 
presented  against  it  both  by  members  and  persons  not 
members.  The  nature  of  the  association  was  very  fully 
discussed,  and  neither  in  respect  to  the  members  them- 
selves, nor  to  third  persons,  was  it  considered  a  partner- 
ship. Sir  William  James,  V.  C,  said  that  there  was  no 
common  liability  among  the  members,  and,  as  to  third  per- 
sons, the  members  stood  in  the  same  position  as  if  they  had 
been  members  of  a  club. 

In  Caldicott  vs.  Griffiths  et  al  (1853/  the  Midland 
Counties  Guardian  Society  for  the  Protection  of  Trade,  an 
unincorporated  association  whose  object  was  to  watch  the 
progress  of  any  measure  in  Parliament  affecting  the  trade 
interests,  and  to  protect  its  members  from  the  practices  of 
the  fraudulent  and  dishonest,  was  declared  not  to  be  a 
partnership.  One  of  the  members  brought  a  suit  for  ser- 
vices rendered,  and  it  was  objected  by  the  defendants  that 
the  society  was  a  partnership,  and  that  the  action  could 
not  lie ;  that  the  only  method  was  to  file  a  bill  for  an 
account  and  settlement  of  the  affairs  of  the  firm;  but 
the  Court  held  that  the  action  was  properly  brought;. 
Said  Martin,  B. :  "  It  is  an  abuse  of  language  to  call  such 
an  association  a  partnership," 

»  L.  R.  8  Eq.  176.  «  8  Ex.  207. 


UNINCORPORATED  ASSOCIATIONS.  17 

So  rlso  the  members  of  a  provisional  committee  of  an 
i7itend^d  railway  company  have  been  held  not  to  be  part- 
ners. The  term  committee  usually  signifies  a  body  of 
indivicuals  to  which  others  have  committed  or  delegated 
a  particular  duty,  or  who  have  taken  upon  themselves  to 
perforn  it  in  expectation  of  their  act  being  confirmed  by 
the  body  they  propose  to  represent  or  act  for.^  In  Reg- 
nell  vs.  Le\^'\->  (1846)^  an  action  of  debt  was  brought 
against  a  m  r-  .,;r  of  a  provisional  committee  of  the  Cen- 
tral Kent  Railway  Company.  Pollock,  C.  B.,  said:  "Such 
an  intended  association  constitutes  no  agreement  to  share 
in  profit  or  loss,  which  is  the  character  of  a  partnership." 

These  cases  represent  the  general  course  of  decisions 
in  the  English  courts.  Although  the  development  of 
their  legal  standing  has  not  always  been  constant,  it  has 
in  the  main  kept  pace  with  their  growth  in  society;  and, 
although  in  the  decisions  of  the  present  day  traces  of  the 
earlier  ideas  are  sometimes  found,  the  weight  of  the  Eng- 
lish authorities';  and  certainly  the  weight  of  reason,  is  in 
favor  of  awarding  to  them  a  standing  in  their  own  right 
and  independent  of  any  idea  of  a  partnership.^ 

§  12.  When  we  look  at  the  Pennsylvania  cases  we  find 
the  same  general  features  which  mark  the  English  cases ; 
first,  that  societies  of  a  charitable  or  religious  nature  have 

1  15  M.  &  W.  517. 

*  In  Queen  vs.  Waite,  2  Cox  Cr.  Cas.  245,  an  indictment  against 
a  member  of  the  University  Club,  a  social  organization,  for  embezzle- 
ment of  funds  of  the  society,  was  not  sustained  by  Lord  Coleridge,  be- 
cause he  regarded  the  club  as  a  partnership.  In  Queen  vs.  Robinson, 
16  Q.  B.  137,  when  a  similar  question  arose,  an  association  called 
the  Christian  Union  was  declared  not  to  be  a  partnership.  Iti  re  St. 
George's  Building  Society,  4  Drewry,  154;  Delauney  vs.  Strickland, 
3  Eng.  Com.  Law,  2  Starkie,  416;  CuUen  vs.  Duke  of  Queensbury, 
1  Bro.  Ch.  Cas.  101  ;  Redway  vs.  Sweeting,  L.  R.  2  Ex.  400  ;  Gray 
vs.  Pearse,  L.  R.  5  C;  Alexander  vs.  Alexander,  L.  R.  8  Eq.  17G. 
2 


18  UNINCORPORATED  ASSOCIATIONS. 

always  been  recognized  independently  of  any  idea  of  part- 
nership ;  second,  that  there  has  been  some  uncertairty  in 
the  decisions  in  reference  to  associations  for  social  or 
beneficial  purposes ;  and  third,  that  the  weight  of  the 
authorities  has  been  to  award  such  associations  a  status 
independent  of  partnerships.  The  first  of  these  pioposi- 
tions  is  so  well  established  that  it  has  seldom  been  doubted 
or  even  alluded  to.^  In  a  recent  case,  Maguire's  Est.,^ 
which  arose  upon  exceptions  to  the  adjudicp.tion  of  the 
account  of  the  administrator,  the  auditing  Judge  (Hanna, 
P.  J..  O.  C.  of  Philadelphia)  disallowed  a  claim  presented 
bv  the  St,  Rose  Dorcas  Society,  an  unincorporated  chari- 
table association,  because  it  was  not  properly  presented. 
*'The  society,"  said  Judge  Hanna,  "being  unincorporated, 
is  in  law  a  partnership."  This  was  overruled  by  the 
Court  in  banc.  Ashman,  J.,  in  delivering  the  opinion  of 
the  Court,  said :  "  The  first  reason  must  be  discarded.  At 
the  very  basis  of  the  definition  of  partnerships  lies  the 
idea  of  profit  and  loss,  and  that  idea  is  excluded  by  the 
constitution  of  the  society  in  question." 

So  that  the  only  difference  of  opinion  has  arisen  in 
cases  of  associations  for  the  private  benefit  of  the  mem- 
bers. One  of  the  clearest  cases  upon  this  subject  is  that 
of  Ash  vs.  Guie  (1881).^  It  was  an  action  of  asfmmpsit 
against  the  Williamson  Lodge  of  Ancient  York  Masons, 
an  unincorporated  beneficial  and  social  association,  for 
money  lent  by  the  plaintiff.  Recovery  was  allowed  on 
the  ground  that  the  members  of  the  lodge  were  partners. 

P.  508  V  Harvey  vs.  Beckwith,  4  N.  R.  90  and  254;  Gaff  vs.  Evans, 
82  B.  373;  Bromley  vs.  Williams,  32  Beav.  177;  Lees  vs.  Smith,  1 
Term  R.  338  ;  Harrison  vs.  Millar,  1  Term  R.  341. 

^  Thomas  vs.  Elmaker,  1  Parsons'  Eq.  Cases,  98,  2d  ed.  note. 

*  7  W.  N.  C.  214;  39  Am.  Rep.  818;  10  Am.  Law  Reg.  278. 

"  1  Out.  4»3. 


UNINCORPORATED  ASSOCIATION'S.  19 

This  judgment  was  reversed  by  the  Supreme  Court, 
and  Justice  Trunkey,  who  delivered  the  opinion,  said : 
"  A  mutual  beneficial  society  partakes  more  of  the  char- 
acter of  a  club  than  of  a  trading  association We 

are  of  the  opinion  that  it  was  error  to  rule  that  all  the 
members  were  liable  as  partners  in  their  relation  to  third 
persons  in  the  same  manner  as  individuals  associated  for 
the  purpose  of  carrying  on  a  trade." 

A  similar  opinion  was  expressed  in  Leech  vs.  Harris 
(1869),^  where  the  question  arose  between  the  members  of 
the  Philadelphia  Board  of  Brokers,  a  voluntary  association 
of  persons  for  purposes  of  convenience  in  the  transaction 
of  business ;  one  of  the  members  filed  a  bill  in  equity 
against  the  committee  and  members  of  the  board,  praying 
a  decree  that  the  plaintiff  be  entitled  to  membership  in 
the  board,  an  injunction,  etc.  Pierce,  J.,  in  continuing 
the  special  injunction,  said :  "  The  Philadelphia  Board  of 
Brokers  is  not  a  corporation.  It  is  not  a  joint-stock  com- 
pany in  the  sense  in  which  companies  are  regarded  by 
the  English  law,  although  it  has  a  large  amount  of  pro- 
perty which  belongs  to  it  in  its  joint  or  aggregate  ca- 
pacity ;  such  private  associations  are  said  not  to  be 
partnerships  as  between  themselves,  whatever  may  be 
their  relations  to  third  persons."  The  agreement  which 
the  members  made  among  themselves  was  held  to  deter- 
mine the  rights  of  the  parties.^ 

In  Scriber  vs.  Kapp^  the  nature  of  the  Harmony  So- 
ciety, a  society  of  Socialists,  in  which  each  of  the  mem- 
bers contributed  all  his  property  and  labor  to  a  common 
stock  and  received  from  it  his  living,  came  before  the  Su- 

^  2  Brewster,  571. 

^  White  vs.  Brownell,  3  Abbot's  Practice  Rep.  N.  S.  318. 

^  5  Watts,  351-360. 


20  UNINCORPORATED  ASSOCIATIONS. 

preme  Court,  upon  an  action  of  account-render  brought 
by  the  administrator  of  a  deceased  member  of  the  associa- 
tion. C.  J.  Gibson  said :  "  That  it  is  not  a  partnership 
resuks  from  the  fact  that  the  profits  are  not  shared  in 
severalty." 

Commonwealth  vs.  YoW  was  an  indictment  for  em- 
bezzlement of  the  funds  of  the  Independent  Order  of  the 
Sons  of  Progress,  a  beneficial  association  of  which  the  de- 
fendant was  a  member.  The  defence  was  that  the  lodge, 
being  unincorporated,  was  a  quasi  partnership,  and  the 
defendant,  being  a  member,  could  not  be  held  for  the 
embezzlement  of  property  in  the  ownership  of  which  he 
was  a  partner.  The  Court  (J.  Arnold)  said :  "  It  is  a 
strain  upon  the  law  to  hold  him  to  be  entitled  as  a  part- 
ner to  retain  the  money  received  and  drive  the  association 
to  a  bill  for  an  account.  The  country  is  full  of  these 
associations,  doing  much  good  among  the  working  peo- 
ple, and  it  is  essential  that  the  relief  they  afford  should 
come  promptly,  and  not  be  delayed  by  suits  as  between 
partners."^ 

The  status  of  a  committee  appointed  at  a  political 
meeting  has  been  decided  not  to  be  that  of  a  partner- 
ship. In  Eichbaum  vs.  Irons  (1843),^  a  tavern-keeper 
brought  an  action  of  assumpsit  against  the  members  of  a 
committee  appointed  by  a  political  meeting  to  provide  a 
free  dinner,  for  the  price  of  the  dinner.  The  case  was 
decided  upon  the  ordinary  law  of  contracts.   Chief  Justice 

1  14  AV.  N.  C.  289. 

*  Queen  vs.  Robson,  16  Q.  B.  D.  137;  Regina  vs.  Murphy,  4  Cox 
Cr.  251;  Regina  vs.  Wooley,  4  Cox  Cr.  Cas.  251;  Rex  vs.  Hall,  1 
Moody  Eng.  Cr.  Cases,  474;  contra  Queen  vs.  AVhite,  2  Cox  Cr. 
Cas.  245. 

^  6  W.  &  S.  67 ;  Richmond  vs.  Judy,  6  Mo.  App.  465  ;  Burt  vs. 
Lathrop,  52  Mich.  106. 


UNINCORPORATED  ASSOCIATIONS.  21 

Gibson  said :  "  But  the  question  would  not  depend  upon 
the  law  of  partnership,  even  were  such  a  meeting  to  be 
treated  as  a  club." 

One  of  the  most  recent  cases,  and  one  which  clearly 
illustrates  the  doctrine  that  the  Courts  will  take  notice 
of  associations  for  the  private  advantage  of  members 
merely  in  their  character  as  unincorporated  associations, 
is  that  of  the  Metropolitan  Base  Ball  Club  vs.  Simmons 
(1885).'  Both  plaintiff  and  defendant  were  members 
of  the  American  Association  of  Base  Ball  Clubs,  the 
purpose  of  which  was  to  afford  the  clubs  composing  the 
association  the  opportunity  and  right  to  play  base-ball 
together.  The  association,  like  the  Philadelphia  Board  of 
Stock  Brokers,  did  not  contemplate  profit  for  itself  from 
these  games,  although  it  afforded  an  opportunity  for  its 
members  to  make  large  profits.  Upon  a  bill  being  filed 
by  one  of  the  clubs  to  determine  its  rights  as  a  member, 
the  nature  of  the  association  was  considered  by  the  Court. 
Thayer,  P.  J.  (C.  P.  No.  4,  of  Philadelphia)  said :  "  But 
it  is  inaccurate  to  say  that  it  is  a  mere  partnership.  If 
there  is  any  such  a  thing  as  an  unincorporated  society  or 
association  within  the  meaning  of  the  act  of  1836,  this 
is  certainly  one  of  those  unincorporated  societies  or  asso- 
ciations. It  has  all  the  organic  parts  of  an  associated 
body.  It  has  a  written  constitution.  Now,  membership 
of  such  an  association  after  it  has  been  acquired  in  pursu- 
ance of  the  constitution  is  a  matter  which  is  in  itself  legal 
property,  even  in  a  mere  voluntary  beneficial  association." 

§  13.  These  cases  show  the  prevailing  and,  we  believe, 
the  correct  legal  standing  of  unincorporated  associations, 
and  yet  there  have  been  several  cases  in  which  the  reason- 
ing has  been  inconsistent  with  this  doctrine,  and  they  are  of 

1  17  W.  N.  C.  153. 


22  UNINCORPORATED  ASSOCIATIONS. 

SO  high  authority  as  to  require  that  the  opinions  expressed 
in  them  be  given  the  utmost  consideration,  and  that  our 
theories  of  the  rights  of  members  be  so  shaped,  if  possible, 
as  to  uphold  their  views. 

Of  these  the  most  important  cases  are  Babb  i%s.  Reed 
(1835),^  decided  by  the  Supreme  Court  (opinion  by 
Justice  Sergeant),  and  Pritchett  vs.  Sheafer,^  decided  by 
the  Court  of  Common  Pleas  No.  1,  of  Philadelphia  (opin- 
ion by  Allison,  P.  J.).  The  former  decided  that  an  un- 
incorporated association,  which  was  not  a  charitable  use, 
was  a  partnership  as  to  third  persons  ;  and  the  latter  that 
such  an  association  was  a  partnership,  as  to  the  members 
themselves.  In  neither  case  were  these  the  direct  point  in 
dispute,  but  in  each  case  the  point  was  first  decided  and 
then,  arguing  from  it,  the  Court  decided  the  principal  point. 

The  conclusions  in  these  cases  are  undoubtedly  correct, 
but  those  parts  of  the  reasoning  which  assume  the  relation  of 
partnership  cannot  be  accepted  without  rejecting  the  opin- 
ions of  more  numerous  and  equally  competent  authorities. 

Let  us  consider  Babb  vs.  Reed.  Reed  and  others  were 
trustees  for  an  unincorporated  beneficial  society  called 
The  Independent  Order  of  Odd  Fellows,  for  whom  they 
held  property  which  was  sold  by  scire  facias  sur  mort- 
gage. Claims  of  material  men  upon  the  surplus  fund  were 
made  and  among  the  claimants  were  several  members  of 
the  association.  A  pro  rata  distribution  was  awarded 
from  which  an  appeal  was  taken  by  those  claimants  who 
were  not  members  of  the  association.  The  points  decided 
were  : — 

I.  That  this  association  being  for  purposes  of  mutual 

'  5  Rawle,  lol. 

2  Reported  in  11  Phila.  IGG,  33  Leg.  Int.  12,  and  2  W.  N.  C. 
317.  The  facts  of  the  case  are  given  more  fully  in  2  W.  N.  C.  317, 
and  the  opinion  in  11  Phila.  166. 


UNINCORPORATED  ASSOCIATIONS.  23 

benevolence  among  its  members  only  is  not  an  association 
for  charitable  iises.^ 

II.  That  its  members  are  considered  as  partners  in  their 
relation  to  third  persons. 

III.  That  the  property  of  the  association  must  be  ap- 
portioned to  pay  the  debts  of  creditors,  not  members  of 
the  association,  before  it  can  be  applied  to  the  payment  of 
the  claims  of  those  who  are  members. 

This  is  a  leading  case  as  far  as  the  first  of  these  propo- 
sitions is  concerned  and  the  third  proposition  is  cited  with 
approval  in  a  number  of  subsequent  cases,  but  the  second 
proposition  has  never  been  followed.  Nor  is  it  a  neces- 
sary link  in  the  chain  of  reasoning  by  which  the  third 
proposition  is  attained.  Starting  with  the  members  of  the 
association  as  joint-owners  of  this  property  and  applying 
the  same  reasoning  to  them  as  was  applied  to  them  as 
partners  we  come  to  the  same  conclusion.  It  is  possible 
that  persons  jointly  owning  lots  of  ground  and  erecting 
buildings  upon  them  to  which  they  furnish  work  and  ma- 
terials, may  obtain  liens  imder  the  Acts  of  Assembly  and 
maintain  them  among  themselves  on  the  ground  that  they 
are  in  equali  jure,  and  to  be  considered  as  mutually  waiv- 
ing objections.  But  neither  at  law  nor  in  equity  will  these 
be  good  against  third  persons  who  hold  similar  liens.  At 
law  the  liens  of  the  owner  would  be  merged  in  the  pro- 
perty since  no  man  can  be  both  debtor  and  creditor,  and 
equity  would  not  uphold  it  in  order  to  place  in  the  hands  of 
the  owner  a  portion  of  that  fund  which  ought  to  go  to  his 
creditor  whose  debt  was  contracted  on  the  faith  of  the 
loan.  The  liens  of  third  persons  would  be  entitled  to 
priority  of  payment ;  so  that  it  is  not  necessary  to  con- 
sider such  a  society  a  partnership  in  order  to  uphold  the 

1  Blenon's  Est.,  Bright.  N.  P.  Rep.  338. 


24  UNINCORPORATED  ASSOCIATIONS. 

decision  in  this  case.  This  view  was  taken  by  Judge 
Trunkey  in  the  case  of  Ash  vs.  Guie,^  where  the  Su- 
preme Court  decided  that  a  lodge  of  Free  Masons  was  not 
a  partnership.  The  learned  Judge  commenting  upon  the 
reasoning  in  Babb  vs.  Reed  says :  "  Had  the  members 
been  called  joint- tenants  of  the  real  estate  tlie  same  prin- 
ciple in  the  distribution  would  have  applied." 

The  case  of  Pritchett  vs.  Shaefer^  presents  the  best 
possible  exposition  of  the  doctrine  that  an  unincorporated 
association,  not  a  charity,  is  a  partnership.  A  close  study 
of  that  case  will  show  the  errors  of  the  doctrine  there 
laid  down,  and  will,  perhaps,  aid  in  determining  the 
true  status  of  such  associations.  A  bill  was  filed  by  a 
member  of  the  Chosen  Friends  Lodge  No.  3,  of  the 
Knights  of  Pythias,  an  unincorporated  beneficial  associa- 
tion, against  the  officers  and  members  of  the  same  to  re- 
cover certain  weekly  payments  or  "benefits"  to  which  he 
claimed  he  became  entitled  under  the  constitution  and 
by-laws  of  said  association  during  a  certain  period  of  ill- 
ness. A  Master  was  appointed  who  made  an  award  in 
favor  of  the  plaintiff,  and  upon  the  exceptions  to  this 
award  the  case  came  before  the  Court. 

Judge  Allison,  in  his  opinion,  said :  "  The  defendants 
are  an  unincorporated  association,  formed  for  purposes  of 
mutual  benefit  and  advantage.  One  of  the  principal 
objects  of  the  organization,  so  far  as  appears  upon  the 
face  of  the  articles  of  association,  is  the  protection  of 
each  other  by  payments  of  money  in  case  of  sickness. 
This  does  not  in  strict  legal  sense  constitute  them  an 
association  for  charitable  uses,  the  benefits  being  exclu- 
sively confined  to  their  own  members.  In  Thomas  vs. 
Elmaker,  1  Parsons,  98,  Judge  King  discussed  the  ques- 

'  1  Outerbridge,  493.  *  11  PLila.  166. 


UNINCORPORATED  ASSOCIATIONS.  25 

tion  of  charitable  uses,  with  the  learning  and  ability  for 
which  he  was  so  pre-eminent,  holding  that  though  the 
statute  of  43  Elizabeth,  in  relation  to  charities,  was  not 
in  force  in  Pennsylvania,  yet  a  common  law,  analogous  in 
its  results  to  those  of  the  statute,  exists  in  this  State,  by 
which  such  subjects  are  placed  under  legal  control  and 
restraint.  Cases  which  are  constructively  within  the 
statute  are  of  a  public  nature,  tending  to  the  relief  of  the 
public  generally.  On  the  otlicr  hand,  where  the  associa- 
tion is  for  private  and  individual  profit  or  pleasure,  with 
no  public  object,  it  is  treated  as  a  partnership.  Judge 
King  remarks  the  English  Chancery  reports  are  full  of 
cases  in  which  associations  for  private  and  individual  pro- 
fit or  pleasure  have  been  looked  upon  in  no  other  light 
than  as  partnerships.  In  support  of  this  principle  he 
cites  the  cases  of  Cullen  vs.  The  Duke  of  Queensbury,  1 
Bro.  Ch.  Ca.  101 ;  Lloyd  vs.  Loaring,  6  Ves.  773;  Pcarce 
vs.  Piper,  17  Id.  1 ;  Cockburn  vs.  Thompson,  16  Id.  321  ; 
Beaumont  vs.  Meredith,  2  Ves.  &  Bea.  180.  In  all  of 
these  cases  Lord  Eldon  regards  the  parties  only  as  part- 
ners. The  same  principle  is  recognized  in  Babb  vs.  Reed, 
5  Rawle,  151.  This  was  the  case  of  an  unincorporated 
lodge  of  Odd  Fellows,  to  which  was  held  applicable  the 
principle  that  in  the  absence  of  an  actual  charter  it  is  a 
voluntary  association  of  individuals,  and  the  members  in 
their  relation  to  third  persons  are  to  be  considered  as 
partners.  Hess  vs.  Werts,  4  S.  &  11.  356 ;  Witmer  vs. 
Schlatter,  2  R.  359 ;  and  Ridgely  vs.  Dobson,  3  W.  &  S. 
118,  support  this  principle.  The  Pennsylvania  decisions 
are  cases  in  which  the  members  of  unincorporated  asso- 
ciations for  private  advantage  were  held  to  be  partners,  so 
as  to  make  them  liable  for  debts  contracted  with  persons 
not  members  of  the  association,  and  to  postpone  claims  of 
members  of  the  organization  to  the  claims  of  third  parties. 


26  UNINCORPORATED  ASSOCIATIONS. 

But  the  general  principle  recognized  in  Thomas  vs.  Elnia- 
ker,  and  in  the  English  cases  cited  above,  which,  though 
not  binding  authority  with  us,  have  yet  the  great  weight 
of  Lord  Eldon's  opinion  to  sustain  them,  that  members 
of  associations  like  that  of  the  defendants,  stand  in  their 
relations  to  each  other,  as  well  as  to  third  parties,  as 
partners,  is  not  shaken  by  anything  which  is  said  in  the 
Pennsylvania  cases.  We  are  to  regard  the  members  of 
this  association  as  partners  inter  se.  Contemplating  no 
charitable  purpose  by  the  articles  of  their  association, 
they  are  as  much  a  private  association  as  is  any  other 
combination  of  individuals  and  capital,  for  the  exclusive 
advantage  of  the  contributors." 

The  doctrine  here  laid  down  may  be  summed  up  as 
follows :  associations  tending  to  the  relief  of  the  public 
generally  are  constructively  within  the  English  statute  of 
charitable  uses — that  is,  are  charities.  Associations  for 
private  and  individual  profit  and  pleasure  are  not  within 
the  statute,  and  therefore  are  treated  as  partnerships. 

Let  us  look  at  the  cases  which  are  cited  as  authority 
for  this  doctrine.  The  case  mainly  relied  upon  in  the 
argument  is  Thomas  vs.  Elmaker.^  This  was  the  case 
of  a  bill  filed  by  certain  members  of  the  Phoenix  Hose 
Company  against  certain  other  members,  praying  a  disso- 
lution of  the  company  and  settlement  of  its  affairs.  The 
association  was  expressly  declared  to  be  a  charity.  Presi- 
dent Judge  King  of  the  Court  of  Common  Pleas,  before 
whom  the  case  came,  said :  "  From  the  course  of  reason- 
ing already  adopted,  in  which  our  jurisdiction  over  these 
parties  is  asserted  on  the  ground  of  the  association  being 
a  charity  or  an  unincorporated  association,  within  the 
contemplation  of  the  13th  section  of  the  act  of  1836,  it 
follows  that  I  do  not  regard  these  as  between  themselves, 

^  1  Pars.  Eq.  Cases,  98,  2d  ed.  note. 


UNINCORPORATED  ASSOCIATIONS.  27 

as  partners."^  The  association  in  Pritchett  vs.  Shaffer 
was  declared  to  be  not  a  charity,  and  the  members  to  be 
partners,  so  that  Thomas  vs.  El  maker  can  hardly  be  an 
authority.  The  principle  recognized  in  the  English  cases 
mentioned  above  was  cited  by  Judge  King  only  as  an 
historical  statement  of  the  fact,  and  was  neither  affirmed 
nor  disaffirmed  as  a  present  existing  principle,  except  so 
far  as  to  say  that  that  case  did  not  fall  within  that 
principle. 

The  early  English  cases  cited  have  already  been  con- 
sidered, and  the  doctrine  upon  which  they  were  decided 
shown  to  be  obsolete.  All  of  them  were  decided  by  Lord 
Eldon,  and  prior  to  1810.^  Of  the  modern  decisions, 
embracing  such  cases  as  Flemyng  vs.  Hector,^  Todd  vs. 
Emley,^  In  re  St.  James  Club,^  Strong  ^.9.  Harvey,®  Li  re 
London  Marine  Ins.  Co.,^  Caldicott  vs.  Griffith,^  and  many 
others  no  mention  is  made. 

Of  the  Pennsylvania  cases  cited,  Babb  vs.  Peed^  has 
been  considered.  Hess  vs.  Werts^°  was  the  case  of  the 
Farmers  and  Mechanics'  Bank  of  Fayette  County,  an  in- 
stitution for  business  purposes  and  profit,  and  bearing  on 
its  face  the  stamp  of  partnership.  Witmer  vs.  Schlatter" 
was  the  case  of  the  Philadelphia  and  Pittsburgh  Trans- 

^  Their  relation  to  third  persons  was  not  considered.  Said  J. 
King  :  "  I  say  as  between  tliemselves,  for  their  relation  to  third  persons 
is  a  dilFerent  affair,  one  not  before  the  Court,  and  upon  which  it  is  not 
requisite  to  pass  judgment  by  anticipation." 

*  In  two  of  the  cases  cited,  CuUen  vs.  Duke  of  Queensbury,  1 
Bro.  Ch.  Ca.  101,  and  Pierce  vs.  Piper,  17  Vesey,  1,  the  question  of 
partnership  did  not  arise. 

s  2  M.  &  W.  171.  *  8  M.  &  W.  505. 

^  2  DeG.  M.  &  G.  383.  *  1 1  Eng.  Com.  Law,  3  Bing.  303. 

'  L.  R.  8  Eq.  176.  8  8  Ex.  897. 

»  5  Rawie,  151.  >»  4  S.  &  R.  356. 

"  2  Rawle,  359. 


28  UNINCORPORATED  ASSOCIATIONS. 

portation  Company,  a  company  whose  sole  object  was 
profit,  and  therefore  a  partnership.  Ridgely  vs.  Dobson^ 
was  the  case  of  the  Bristol  Lyceum,  an  appropriate 
example,  but  it  was  decided  upon  the  principle  of  agency. 
In  answer  to  one  of  the  defendants'  points,  the  judge  ex- 
pressly said :  "  Whether  it  was  a  partnership  or  not  is 
immaterial." 

The  incorrectness  of  the  statement  that  "  the  general 
principle  that  members  of  associations,  like  that  of  the 
defendants,  stand  in  their  relation  to  each  other,  as 
well  as  to  third  parties,  as  partners,  is  not  shaken  by 
anything  which  is  said  in  the  Pennsylvania  cases,"^  is 
shown  by  the  cases  of  Ash  vs.  Guie,'^  Leech  vs.  Harris,^ 
Schriber  vs.  Rapp,'  Commonwealth  vs.  Volz,^  Eich- 
baum  vs.  Irons,^  and  the  Metropolitan  Base  Ball  Club 
vs.  Simmons,^  all  of  which  were  unincorporated  asso- 
ciations for  the  private  benefit  of  the  members,  none 
of  which  contemplated  any  charity,  and  in  all  of  which 
the  Court  distinctly  declared  that  the  members  were  not 
partners. 

The  objection  to  the  doctrine  of  Pritchett  vs.  Shaffer 
may  be  stated  as  follows :  First,  the  English  cases  relied 
upon  were  very  early  cases  whose  doctrine  has  since  been 
declared  obsolete ;  second,  none  of  the  modern  English 
cases  were  considered ;  third,  none  of  the  Pennsylvania 
cases  cited  were  applicable,  except  one,  and  in  that  case 
the  doctrine  was  not  necessary  to  the  decision ;  and  fourth, 
in  a  number  of  Pennsylvania  cases  in  which  exactly  the 
same  question  arose  under  similar  circumstances,  it  was 
expressly  declared  that  the  members  were  not  partners. 

>  3  AV.  &  S.  118.  '  Judge  Allison's  Opinion,  11  Phila.  IGC. 

5  1  Out.  4i)3.  *  2  Brewster,  .571. 

*  0  Watts,  351.  8  14  W.  N.  C  289. 

'  G  W.  &  S.  67.  8  17  W.  N.  C.  153. 


UNINCORPORATED  ASSOCIATIONS.  29 

From  Babb  vs.  Reed  (1835),  in  which    the  doctrine 
(that  unincorporated  associations  which  are  not  charities 
are  to  be  considered  as  partnerships)  was  first  declared, 
to  Pritchett  vs.  Shaffer,  we  have  been  unable  to  find  any 
instance  in  which  it  was  followed,  and  subsequent  to  that 
case  there  are  two  decisions  in  which  it  was  mentioned 
with  approval.      One  was  Kurz  vs.  Eggert  (1880),^  in 
which    the   question    was   precisely    similar    to    that   in 
Pritchett  vs.  Shaffer,  except  that  it  arose  at  law  instead  of 
in  equity.      It  arose  before  the   same  judge,  presented 
the  same  circumstances,  and  the  same  doctrine  was  de- 
clared.    Meanwhile  the  act  of  28th  x\pril,  1876,  limiting 
the  liability  of  the  members  of  unincorporated  beneficial 
associations,  had  been  passed,  and  Judge  Allison  decided 
that  this  act  did  not  change  the  status  of  such  associations. 
The  case  does  not  add  anything  to  the  former  opinion. 
The  other  was  Paul  vs.  The  Keystone  Lodge,  eo  nomine 
(1877),"  in  which  a  demurrer  to  the  form  of  the  action 
was    sustained.      Judge    Ludlow    (C.   P.   No.   3,  Phila- 
delphia), in  an  oral  opinion,  said :    "  We  concur  in  tlie 
opinion  of  Allison,  P.  J.,  in  Pritchett  vs.  Shaffer."    In  both 
of  these  cases  the  opinion  was  oral,  in  both  the  report  is 
very  brief,  and  in  neither  was  the  point  reviewed  by  the 
Supreme  Court. 

Finally,  the  doctrine  in  Pritchett  vs.  Shaffer  is  not 
necessary  to  support  the  decision  in  that  case.  The 
learned  judge  argued  as  follows  : — 

I.  The  association  is  assumed  to  be  a  partnership. 

II.  Under  their  general  obligation  as  partners  the  in- 
debtedness of  the  defendants  to  the  plaintiff  is  a  debt  for 
which  the  members  stand  severally  and  jointly  bound. 

III.  The  articles  of  association   are  to  be  considered 

1  9  W.  N.  C.  126.  *  3  W.  N.  C.  408. 


30  UNINCORPORATED  ASSOCIATIONS. 

in  the  light  of  an  agreement  between  the  members  ex- 
tending or  limiting  any  general  obligation  which  binds 
them  to  each  other  as  members  of  the  partnership. 

IV.  An  examination  of  the  laws  of  the  order  does  not 
disclose  any  agreement  by  which  they  are  relieved  from 
such  obligation.  Therefore  the  defendants  are  liable 
under  their  general  obligation  as  partners. 

This  is  a  negative  way  of  coming  to  the  same  con- 
clusion to  which  we  may  come  by  positive  reasoning 
based  upon  the  facts  as  they  are  stated  in  the  opinion. 
Let  us  summarize  these  facts:  First,  the  agreement  was 
"  A  general  stipulation  for  equal  contribution  by  the 
members  to  the  funds  of  the  lodge,  which  contributions 
are  to  constitute  a  capital  out  of  which,  in  the  event  of 
sickness,  benefits  are  to  be  paid  :"^  Second,  the  sickness 
for  which  the  plaintiff  claimed  a  benefit  was  decided  to  be 
such  as  was  contemplated  by  the  laws  of  the  association: 
Third,  the  defendants  did  not  attempt  to  show  that  the 
funds  of  the  lodge  raised  in  this  manner  were  not  suffi- 
cient to  pay  the  just  demand  of  the  plaintiff.^ 

These  facts  being  established;  if  we  consider: — 

I.  That  this  is  an  unincorporated  association. 

II.  That  the  members  are  bound  by  the  articles  of 
association. 

III.  That  these  articles  contain  an  agreement  by  which 
the  plaintiff,  because  of  sickness,  is  entitled  to  benefits  to 
be  paid  out  of  the  funds  of  the  lodge  obtained  by  the 
equal  contribution  of  the  members  of  whom  the  defend- 
ants are  a  part. 

lY.  That  the  sickness  upon  which  the  claim  is  made 
is  such  as  is  contemplated  in  these  articles. 

*  Judge  Allison's  Opinion,  11  Phila.  p.  169. 
'  Ibid.,  p.  170. 


UNINCORPORATED  ASSOCIATIONS.  31 

V.  That  the  defendants  have  not  attempted  to  show 
that  the  funds  of  the  lodji^e  raised  in  this  manner  were 
not  sufficient  to  pay  the  just  demands  of  the  plaintiff. 

We  must  conclude  that  the  defendants  are  liable  under 
the  agreement  made  by  them  as  members  of  an  unincor- 
porated association. 

§  14,  The  result  of  all  the  authorities  may  be  summed 
up  thus :  the  English  decisions  at  first  included  unincor- 
porated associations  under  the  head  of  partnerships,  and 
this  idea  is  found  running  through  a  few  of  the  later 
cases,  but  the  great  bulk  of  the  English  decisions,  and 
especially  the  modern  ones,  have  awarded  to  such  asso- 
ciations an  independent  standing.  The  later  English 
view  has  been  adopted  in  Pennsylvania  with  a  few  excep- 
tions. These  exceptions  may  be  reduced  to  three,  Rabb 
vs.  Ileed,^  Pritchett  vs.  Shaffer,^  and  a  remark  in  Paul 
vs.  The  Keystone  Lodge,^  and  in  none  of  these  was  the 
doctrine  necessary  to  the  decision.  The  weight  of  these 
opinions  is  far  over-balanced  by  the  direct  decisions  of 
such  competent  authority  as  Chief  Justice  Gibson  and 
Justice  Trunkey,  of  the  Supreme  Court,  and  Justices 
Thayer,  Pierce,  and  Arnold  of  the  Courts  of  Common 
Pleas.  So  that  the  conclusion  we  believe  is  justified  that 
unincorporated  associations  possess  a  status  in  Pennsyl- 
vania, independent  of  the  laws  of  partnership  and  founded 
upon  an  application  to  their  cases  of  the  laws  of  contract 
and  of  agency. 

1  5  Rawle,  151.  '  11  Phila.  IGG.  *  3  AV.  N.  C.  408. 


32  UNINCORPORATED  ASSOCIATIONS. 


CHAPTER    III. 

LIABILITY  OF  MEMBERS. 

§  15.  The  most  important  branch  of  this  subject,  and 
that  under  which  most  of  the  legal  questions  have  arisen, 
is  the  liabiUty  of  the  members  of  unincorporated  associa- 
tions. This  liability  is  of  two  kinds:  first,  where  it  arises 
from  the  acts  of  those  members  themselves  who  are  sought 
to  be  charged,  and  in  this  case  the  same  rules  apply  which 
ordinarily  determine  the  liability  of  a  man  for  his  own 
acts:^  second,  where  it  arises  from  the  acts  ol"  other  mem- 
bers of  the  association  than  those  sought  to  be  charged, 
and  in  this  case  the  controlling  principles  are  those  which 
govern  the  relation  of  principal  and  agent.  Liability  under 
this  head  may  be  imposed  either  by  the  association  acting 
as  a  body  or  by  the  individual  acts  of  members.  LiabiUty 
may  also  arise  inter  se  or  concerning  third  persons.  But 
in  whatever  form  it  arises  the  same  principles  rule  which 
would  have  ruled  in  a  like  case  concerning  principal  and 
agent. 

§  16.  The  underlying  principles  of  agency  may  be 
briefly  stated  as  follows :  A  principal  is  responsible  either 
where  he  has  given  to  an  agent  sufficient  authority,  or 
where  he  justifies  the  party  dealing  with  his  agent  in  be- 
lieving that  he  has  given  to  his  agent  this  authority.^ 

An  agent  becomes  personally  liable  only  where  the 
principal  is  not  known,  or  where  there  is  no  responsible 

'  Elchbaum  vs.  Irons,  6  W.  &  S.  G7. 
*  Parsons  on  Contracts,  page  44. 


UNINCORPORATED  ASSOCIATIONS.  33 

principal,  or  where  the  agent  becomes  liable  by  an  under- 
taking in  his  own  name,  or  where  he  exceeds  his  power.^ 

Nearly  all  questions  which  arise  as  to  the  liability  of 
members  of  an  unincorporated  association  maybe  resolved 
by  these  principles  or  others  growing  out  of  them ;  for  in- 
stance, in  Delauney  vs.  Strickland,^  the  question  was 
whether  the  agent  had  become  liable  by  an  undertaking 
in  his  own  name  ;  in  Eichbaum  vs.  Irons,'^  there  was  no 
responsible  principal ;  in  Flemyng  vs.  Hector,^  the  prin- 
cipal did  not  give  the  agent  sufficient  authority  (so  also 
Todd  vs.  Emley),'^  and  so  on  through  the  whole  list  of 
cases. 

§  17.  A  glance  at  these  principles  will  show  that  there 
is  a  distinction  between  the  authority  really  vested  in  the 
agent  and  the  authority  apparently  so  vested ;  and  this 
gives  rise  to  the  distinction  between  the  liability  of  the 
members  of  an  unincorporated  association  intei'  se,  and  as 
to  third  persons.  Although  by  their  agreement  the  mem- 
bers may  confer  only  a  very  limited  authority  upon  each 
other,  yet  they  may  so  act  as  to  lead  others  to  believe  that 
a  very  extended  authority  exists.*'  An  association  or  club 
usually  acts  through  its  members,  and  tradesmen  are  ac- 
customed to  deal  with  a  club  through  one  or  several  of  its 
members.  What  protection  have  persons  who  so  deal 
with  an  association  1  In  the  first  instance  the  tradesman 
relies  upon  the  person  with  whom  he  deals.  If  he  desires 
any  further  security,  it  is  his  business  to  determine  by 
what  authority  that  person  acts.  But  the  members  of  the 
association  must  remember  that  they  have  given  to  each 

"■  2  Kent's  Com.  630         ^  2  Starkie,  41G  ;  3  Eng.  Com.  Law,  47U. 
^  6  W.  &  S.  67.  *  2  M.  &  W.  171.  »  7  M.  &  W.  426. 

^  Waugh  vs.  Carver,  2  H.  Bl.  235;  1   Smith's  Lead.  Cases,  1316, 
Hare  &  Wallace's  ed. 
3 


:U  UNINCORPORATED  ASSOCIATIONS. 

other  certain  powers,  and  they  must  be  careful  that  their 
acts  do  not  lead  other  parties  to  believe  that  they  have 
jj^iven  to  each  other  more  authority  than  they  intended  to 
give,  for  they  are  responsible  not  only  for  the  authority 
which  they  intended  to  give,  but  also  for  the  authority 
which  they  justly  lead  others  to  believe  they  have  given. 

The  chief  evidence  to  which  the  principles  of  agency 
are  to  be  applied  will  be  found  in  the  constitution  and  by- 
laws of  the  association.  These  are  the  contracts  between 
the  parties,  and  except  under  special  circumstances  rule 
the  case.^  In  Thompson  vs.  Adams,^  the  Supreme  Court 
decided  that  "  the  constitution  and  articles  of  association 
of  a  voluntary  association  such  as  the  Philadelphia  Board 
of  Brokers,  are  a  law  as  to  its  members."  The  liability  of 
the  members,  supposing  them  to  have  done  nothing  to 
make  themselves  personally  liable,  depends  ultimately 
upon  the  rules  of  the  association.  These  rules  are  set 
forth  at  length  upon  tlie  record  of  the  case.  In  a  case  in 
which  this  was  not  done,  and  an  unincorporated  association 
"  without  proof  of  its  constitution  and  the  management 
of  its  affairs  was  held  to  be  a  common  partnership,"  the 
judgment  was  reversed  by  the  Supreme  Court  and  a  new 
trial  ordered.'' 

§  18.  Liability  under  the  first  head  of  the  division 
which  we  made  of  the  subject  of  this  chapter,  namely, 
arising  from  the  actSs  of  those  members  themselves  who 
are  sought  to  be  charged,  may  be  either  to  individuals  or 

*  Every  member  is  presumed  to  be  acquainted  with  the  rules  of  the 
association.  Raggett  vs.  Musgrave,  2  C.  &  P.  556  ;  12  Eng.  Com. 
Law,  730. 

*  7  W.  N.  C.  281. 

*  Ash  vs.  Guie,  1  Out.  493;  Flemyng  vs.  Hector,  2  M.  &  W.  171. 
See,  also,  opinion  of  Vice-Chan.  Bacon,  in  Ljttleton  vs.  Blackburn, 
45  L.  T.  Ch.  219-223. 


UNINCORPORATED  ASSOCIATIONS.  35 

to  the  association.  Suits  of  the  former  kind  are  usually 
brought  against  a  member  in  his  individual  capacity  and 
do  not  involve  any  question  concerning  his  membershi]> 
in  the  association.  An  instance  under  this  head  however 
arose  in  the  case  of  Eichbaum  vs.  Irons,'  already  men- 
tioned, in  which  the  members  of  a  committee  appointed 
by  a  political  meeting  were  sued  for  the  price  of  a  dinner. 
It  was  a  joint  contract  and  the  question  to  determine  was 
how  far  each  of  the  defendants  by  his  own  acts  made 
himself  a  party  to  it. 

§  19.  Liability  to  the  association  may  be  incurred  for 
the  payment  of  entrance  money,  dues,  and  other  obliga- 
tions, entered  into  by  the  agreement  of  association"^  or 
in  almost  any  way  in  which  liability  could  be  incurred  to 
an  individual.  Mutual  subscriptions  may  impose  a  lia- 
bility, and  this  liability  will  be  enforced  in  favor  of  tlie 
association  the  same  as  if  it  were  a  contract  with  an 
individual. 

These  suits  frequently  arise  in  the  formation  of  an 
association.  Persons  sign  a  subscription  paper  agreeing 
to  become  members  of  and  contributors  to  a  contem- 
plated association.  If  the  association  is  formed  and  the 
terms  of  the  subscription  complied  with,  the  subscriptions 
may  be  enforced ;  but  frequently  these  terms  are  only 
partly  complied  with,  and  then  it  is  a  question  how  far 
the  subscribers  or  members  of  the  provisional  committee 
are  bound.  In  Edinboro'  Academy  vs.  Robinson,''  ^^dlere 
persons    subscribed    to  a   fund    lor  the    erection    of    an 

»  6  W.  &  S.  67. 

-'  Raggett  vs.  Bishop  (1826),  2  C.  &  P.  343;  12  Eng.  Com.  Law, 
»)07  ;  Raggett  vs.  Musgrave  (1827),  2  C.  &  P.  566;  12  Eng.  Com. 
Law,  73(». 

'  1  Wr.  210.  After  organization  this  association  was  incorporated, 
but  before  incorporation  it  was  an  appropriate  example. 


3()  UNINCORPORATED  ASSOCIATIONS. 

Academy  and  the  subscription  provided  for  organization, 
Lowrie,  C.  J.,  said  that  as  soon  as  the  subscription-paper 
became  complete  by  the  subscription  of  the  stipulated 
amount  of  money,  the  subscribers  to  it  became  an  asso- 
ciation of  persons  united  for  contributing  to  a  common 
fund  for  a  common  purpose  to  be  carried  out  by  them- 
selves. The  consideration  in  such  a  contract  is  the  enter- 
ing into  a  similar  contract  by  the  other  members. 

In  Phipps  vs.  Jones,^  the  circumstances  were  as  fol- 
lows :  Ellis  Phipps  (together  with  two  hundred  others) 
signed  a  paper  agreeing  to  pay  a  certain  sum  for  the  pur- 
pose of  building  a  house  for  public  worship,  with  the 
understanding  that  when  sufficient  money  was  subscribed 
to  justify  the  undertaking  there  should  be  a  meeting  of 
the  subscribers  and  a  building  committee  appointed. 
Before  this  general  meeting  of  the  contributors,  he  died, 
and  suit  was  brought  against  his  administrator  to  enforce 
the  subscription.  The  Supreme  Court,  reversing  the 
judgment  of  the  lower  Court,  said  that  the  death  of  the 
subscriber  before  the  complete  formation  of  the  association 
revoked  the  subscription.  The  subscription-paper  was 
itself  the  first  step  towards  the  formation  of  the  association. 
The  subscriptions  were  proposals  which  until  their  accept- 
ance by  the  formation  of  the  association  were  revoked.  If, 
however,  the  association  had  been  formed  in  accordance 
with  the  terms  of  the  subscription  before  the  subscription 
had  been  revoked,  it  would  have  been  a  binding  contract. 
This  occurred  in  Chambers  vs.  Calhoun,'^  where  a  sub- 
scription similar  to  that  in  Phipps  vs.  Jones  was  made 
and  the  association  carried  to  completion.  An  action  by 
the  members  of  the  building  committee  to  collect  the 


1  20  Pa.  260;  Ryerss  vs.  Cong,  of  Blossburg,  9  Casey,  114. 
»  18  Pa.  13. 


UNINCORPORATED  ASSOCIATIONS.  37 

subscription  was  upheld.  In  all  of  these  cases  in  which 
the  member  is  sought  to  be  charged  for  his  own  acts 
the  ordinary  laws  of  contracts  prevail. 

§  20.  Under  the  second  head  (where  the  liability  arises 
from  the  acts  of  other  members  than  those  sought  to  be 
charged)  most  of  the  cases  have  arisen,  and  these  are 
capable  of  two  sub-divisions:  first,  where  the  liability  is 
incurred  through  the  association  acting  as  a  body ;  and 
second,  where  it  is  incurred  through  the  acts  of  individual 
members. 

An  instructive  example  in  Pennsylvania  of  the  first  of 
these  is  the  case  of  Ash  vs.  Guie.^  It  is  especially  valua- 
ble as  a  precedent  because  the  association  in  that  case 
possessed  no  peculiar  features.  The  constitution  and  rules 
were  not  given  in  evidence,  so  that  it  left  the  question  to 
be  decided  upon  the  general  nature  of  such  associations. 
The  Williamson  Lodge  of  Ancient  York  Masons,  an  un- 
incorporated beneficial  and  social  association,  desired  to 
erect  a  building  for  lodge  purposes.  At  a  meeting  of  the 
lodge,  the  Master  appointed  a  committee  of  five  to  select 
a  lot,  procure  plans,  etc.,  and  the  building  was  erected 
under  the  direction  of  this  committee.  The  committee 
borrowed  money  and  issued  certificates  therefor,  signed 
by  the  officers  of  the  lodge.  The  committee  reported  to 
the  lodge  from  time  to  time,  and  its  action  was  approved 
by  the  lodge.  An  action  of  assumpsit  was  brought 
against  the  members  of  the  lodge  upon  one  of  these  cer- 
tificates. The  defendants  claimed  that  the  erection  of 
the  building  was  not  within  the  scope  of  the  objects  of  the 
lodge,  and  that,  to  charge  the  individual  members  of  the 
lodge,  it  must  be  shown  that  they  personally  authorized 
or  assented  to  the  acts  of  the  committee ;  that  the  action 

1  1  Out.  493. 


38  UNINCORPORATED  ASSOCIATIONS. 

of  the  lodge  would  only  bind  those  members  who 
participated  in  or  assented  to  that  action.  The  lower 
Court  ordered  judgment  to  be  entered  against  all  of  the 
defendants,  but  upon  a  writ  of  error  to  the  Supreme 
Court  this  judgment  was  reversed.  Justice  Trunkey, 
who  delivered  the  opinion  of  the  Court,  said :  "  The 
])roof  fails  to  show  that  the  officers,  or  a  committee, 
or  anv  number  of  the  members,  had  a  right  to  contract 
debts  for  the  building  of  a  temple,  which  would  be  valid 
against  everybody  from  the  mere  fact  that  he  was  a  mem- 
ber of  the  lodge.  But  those  who  engaged  in  the  enter- 
prise are  liable  for  the  debts  they  contracted,  and  all  are 
included  in  such  liability  who  assented  to  the  undertak- 
ing, or  subsequently  ratified  it.  Those  who  participated 
in  the  erection  of  the  building  by  voting  or  by  advising 
it,  are  bound  the  same  as  the  committee  who  had  it  in 
charge ;  and  so  with  reference  to  borrowing  money.  A 
member  who  subsequently  approved  the  erection  could 
be  bound  on  the  ground  of  ratification  of  the  agent's  acts." 
This  case  shows  that  the  mere  fact  of  association  im- 
plies no  liability.  It  was  not  shown  that  the  acts  were 
within  the  objects  of  the  association ;  and  they  were,  there- 
fore, binding  only  on  those  who  sanctioned  them.  It  is 
incumbent  upon  him  who  seeks  to  impose  the  liability  to 
show  that  the  acts  for  which  the  liability  is  sought  to  be 
imposed  were  within  the  power  of  the  association. 

§  21.  A  class  of  cases  arises  under  this  head  where  one 
member  of  a  beneficial  association  is  sought  to  be  charged 
by  another  member  with  the  payment  of  sick  benefits. 
The  case  of  Pritchett  vs.  Shaffer,  which  has  been  consid- 
ered at  some  length,  was  an  instance  of  this.  These  cases 
will  all  be  found  to  depend  upon  the  principles  of  agency. 
And  in  these  cases,  more  than  in  any  other,  the  chief  evi- 


UNINCORPORATED  ASSOCIATIONS.  39 

dence  to  which  these  principles  are  to  be  applied  will  be 
found  in  the  constitution  and  by-laws  of  the  association. 

In  Pennsylvania  the  liability  of  the  members  of  these 
associations  is  now  regulated  by  statute.  The  act  of  28th 
April,  1876,  provides  that  the  members  of  beneficial 
societies  shall  not  be  individually  liable  for  the  payments 
of  benefits,  and  that  the  same  shall  be  paid  out  of  the 
treasury  of  such  organizations.  This  act  did  not  change 
the  legal  status  of  these  associations,  but  only  declared 
how  the  contract  entered  into  by  the  members  when  they 
subscribed  to  the  constitution  should  be  interpreted,  and 
in  cases  where  individual  liability  might  have  been  incur- 
red previous  to  that  act,  the  remedy  was  limited  to  the 
funds  of  the  association.^ 

§  22.  The  instances  in  which  liability  has  been  sought 
to  be  fastened  upon  one  member  for  the  acts  of  another 
have  usually  arisen  through  the  medium  of  a  committee. 
Societies  usually  appoint  a  committee  to  manage  their 
affairs,  and  obligations  are  frequently  incurred  by  a  mem- 
ber or  members  of  this  committee  which  are  souo:ht  to  be 
enforced  either  against  other  members  of  the  committee 
or  against  members  of  the  society  at  large.  The  status  of 
a  committee  with  relation  to  its  members,  to  the  members 
of  the  society  at  large,  and  to  the  public,  is  the  most 
difficult  to  determine  of  all  the  questions  concerning  the 
liability  of  the  members  of  an  unincorporated  association. 

The  leading  case  upon  this  subject  is  Flemyng  vs. 
Hector  (1836).^  It  was  an  action  of  assumpsit  brought 
by  Flemyng,  a  wine-merchant,  against  Hector,  a  member 

^  Paul  vs.  Keystone  Lodge,  3  W.  N.  C.  408 ;  Kurz  vs.  Eggert,  9 
W.  N.  C.  126. 

'  Flemyng  vs.  Hector,  Adams  vs.  O'Brien,  and  Adams  vs.  Rippen, 
were  tried  at  the  same  time  and  involved  the  same  questions,  2  M.  & 
W.  171. 


40  UNINCORPORATED  ASSOCIATIONS. 

of  the  Westminster  Reform  Club,  for  the  price  of  wine 
furnished  to  the  club  during  the  period  of  its  existence. 
The  club  was  an  ordinary  social  organization,  governed 
by  a  constitution  and  by-laws.  The  important  rules  bear- 
ing upon  this  case  were :  Rule  6.  "  That  each  member 
on  admission  to  the  club  should  pay  ten  guineas,  and  the 
annual  subscription,  five  guineas."  Rule  19.  "That 
there  should  be  a  committee  to  manage  the  affairs  of  the 
club,  consisting  of  thirty  members,  to  be  chosen  by  vote 
at  the  general  meeting  of  the  club."  Rule  28.  "  That  all 
members  be  expected  to  discharge  their  club  bills  day  by 
dav,  the  steward  having  orders  not  to  open  accounts  with 
any  individuals,  and  being  authorized  to  refuse  to  continue 
to  supply  parties  neglecting  to  pay  what  they  may  owe 
after  payment  is  requested."  The  defendant  frequented 
and  dined  at  the  club  and  was  in  the  habit  of  ordering 
Flemyng's  wine.  There  was  no  evidence  to  show  that  he 
authorized  the  purchase  of  the  wine  on  credit.  A  verdict 
was  directed  to  be  entered  for  the  plaintiff,  with  leave  to 
the  defendant  to  enter  a  rule  for  a  non-suit.  After  argu- 
ment upon  this  rule  a  non-suit  was  ordered.  Lord  Ab- 
inger,  C.  B.,  delivered  the  principal  opinion  and  Barons 
Parks,  Alderson,  and  Gurnsey  each  delivered  concurring 
opinions.  Lord  Abinger  said  that  the  authority  of  the 
committee  to  bind  the  members  depends  upon  the  consti- 
tution of  the  club  which  is  to  be  found  in  its  rules.  Of 
these  rules  he  said  :  "  The  words  are  '  to  manage  the  af- 
fairs of  the  club,'  the  question  then  is  what  the  affairs  of 
the  club  are.  They  are  to  have  in  their  hands  a  subscrip- 
tion, and  they  are  to  take  care  that  every  member  pays 
it  before  he  comes  into  the  club,  and  pay  for  everything 
he  has  in  the  club.  It  therefore  appears  that  the  mem- 
bers in  general  intended  to  provide  a  fund  for  the  com- 
mittee to  call  upon.     I  cannot  infer   that  they  intended 


UNINCORPORATED  ASSOCIATIONS.  41 

the  committee  to  deal  upon  the  credit  and  unless  you  infer 
that  that  was  the  intention,  how  are  the  defendants  bound '?" 
Baron  Parke  said :  "  The  inference  sought  to  be  drawn 
rests  altogether  on  the  ground  of  the  committees  not  deal- 
ing in  the  way  they  ought  to  deal;  but  if  that  is  to  vary 
the  authority  given  by  the  original  rules,  it  should  be  shown 
affirmatively  that  the  defendant  did  know  and  sanction  it," 
One  of  the  most  famous  cases  upon  this  subject  was  the 
case  of  Todd  vs.  Emley  (1841),^  which  was  exhaustively 
considered  by  the  Court  of  Exchequer,  before  whom  it  was 
argued  a  number  of  times.^  It  was  an  action  of  assumpsit 
brought  to  recover  the  price  of  wine  supplied  by  the  plain- 
tiffs to  the  Alliance  Club  during  the  time  that  the  defend- 
ants were  members  of  tlie  committee  of  that  club.  The 
members  on  admission  paid  entrance  money  and  an  an- 
nual subscription,  and  all  provisions  consumed  in  the  club 
were  paid  for  in  ready  money.  The  club  possessed  a  fund 
from  which  expenses  were  paid  by  check  signed  by  cer- 
tain persons  who  were  given  authority  to  do  so.  The 
house  steward,  who  was  the  agent  of  the  committee  for  the 
purpose  of  ordering  articles  for  the  use  of  the  club,  ordered 
wine  from  the  plaintiffs.  He  ordered  by  authority  of  the 
"  members  of  the  committee,"  and  the  committee  were 
aware  that  the  wine  was  obtained  on  credit.  It  did  not 
appear  whether  "  members  of  the  committee"  included  all 
the  members  elected  to  the  position,  or  only  those  who 
attended  the  committee  meetings.  The  defendants  had 
not  ordered  the  wine  personally  nor  was  it  shown  that 
they  were  present  at  any  particular  meeting  when  authority 

1  8  M.  &  W.  505. 

"^  See  the  reports  in  Law  Journal,  10  vol.  Exch.  Jan.  19,  18il, 
page  161  ;  and  May  25,  1841,  page  202  ;  7  M.  &  W.  426;  8  M.  & 
yS\  505. 


42  UNINCORPORATED  ASSOCIATIONS. 

to  order  it  was  given  to  the  steward.  The  case  was 
tried  three  times,  and  on  each  occasion  a  verdict  was  re- 
turned for  the  plaintiff. 

The  first  trial  was  set  aside  on  the  grounds  that  one 
member  of  a  committee  can  only  bind  another  for  acts 
done  in  furtherance  of  the  common  purpose  for  which 
the  committee  was  appointed,  and  in  this  case  there  was 
no  common  purpose  of  dealing  on  credit.  Lord  Abinger 
looked  upon  the  defendants  as  trustees  for  the  club,  hav- 
ing no  authority  to  deal  on  credit,  so  that  one  committee- 
man could  not  bind  the  others.  The  verdict  in  the  second 
trial  was  set  aside  because  the  question  of  the  individual 
liability  of  the  defendants  was  not  brought  distinctly  to 
the  notice  of  the  jury.  Said  Bar5n  Alderson  :  "  In  order 
to  make  the  case  out  and  establish  the  liability  of  the  de- 
fendants, the  jury  must  be  satisfied  that  what  was  done 
was  not  only  within  the  knowledge  of  the  committee 
generally,  but  that  it  was  within  the  particular  knowledge 
of  the  two  defendants." 

The  principle  which  governed  this  case  is  identical  with 
that  laid  down  in  Flemyng  vs.  Hector.  In  the  one  case 
it  was  applied  in  determining  the  liability  of  a  member 
of  the  association  at  large,  and  in  the  other  of  a  member 
of  the  committee,  and  both  of  these  cases  are  in  harmony 
with  the  doctrine  declared  in  Ash  vs.  Guie.  In  all  of 
them  it  was  held  that  the  contracting  body  could  only 
bind  those  whom  it  represented  so  far  as  they  had  con- 
ferred authority  upon  it.  In  Ash  vs.  Guie,  the  Court 
held  that  in  the  absence  of  the  articles  of  association  it 
could  not  be  inferred  from  the  nature  of  the  association 
that  it  possessed  the  authority  imputed  to  it ;  and  in 
Flemyng  vs.  Hector,  and  Todd  vs.  Emley,  the  Court  held 
that  the  articles  of  association,  having   been   given   in 


UNINCORPORATED  ASSOCIATIONS.  43 

evidence,  did  not  show  that  the  authority  had  been 
conferred.^ 

§  23.  A  question  frequently  arises  as  to  whether  a  com- 
mittee is  empowered  to  deal  on  credit.  In  both  of  the 
cases  last  mentioned  provisions  were  made  for  a  club  fund 
and  then  a  committee  was  appointed  to  manage  the  affairs 
of  the  club,  and  the  Court  said  that  the  committee  must 
confine  its  expenditures  to  the  fund  provided.  Where 
a  fund  is  expressly  provided  or  set  aside  for  the  use  of  the 
committee,  it  is  restricted  to  that  fund,  but  when  no  such 
fund  is  given  for  its  use,  the  authority  to  deal  on  credit 
may  be  implied. 

This  is  illustrated  by  two  cases  in  which  the  distinction 
is  very  closely  drawn,  and  in  one  of  which  the  authority 
to  deal  on  credit  was  held  to  exist  and  in  the  other  not  to 
exist.  In  Cockerell  vs.  Aucompte,^  the  members  of  a  coal 
club,  having  provided  a  general  fund,  authorized  an  agent 
to  order  coals  for  them.  The  agent  bought  coals  on 
credit  and  the  members  were  held  liable  for  the  payment. 
On  the  other  hand,  in  Wood  vs.  Finch,^  where  a  coal 
club  provided  a  fund  and  placed  it  in  the  hands  of  an 
agent  and  gave  him  authority  to  purchase,  the  members 
were  held  not  to  be  liable  for  purchases  made  on  credit. 
In  this  case  a  specific  fund  was  provided  and  no  inference 
could  therefore  be  drawn  that  the  agent  had  authority  to 
go  beyond  that  fund. 

§  24.  The  result  of  these  cases  may  be  stated,  as  fol- 
lows :  Liability  must  always  be  proved  affirmatively.     It 

'  Delauney  vs.  Strickland,  2  Stark.  N.  P.  C.  416,  3  Eng.  Com. 
Law  ;  Cullen  vs.  Duke  of  Queensbury  (1775),  Bro.  Ch.  Ca.  101  ; 
Burls  vs.  Smith  (1829),  7  Bing.  705,  20  Eng.  Com.  Law  ;  In  re  St. 
James  Club,  2  De  G.  M.  &  G.  See  Lord  Chancellor  St.  Leonards' 
opinion. 

'  2  C.  B.,  N.  S.  440,  89  Eng.  Com.  Law.  »  2  F.  &  F.  447. 


44  UNINCORPORATED  ASSOCIATIONS. 

may  be  proved  in  two  ways,  either  by  authority  given  in 
the  constitution  and  rules  of  the  association  or  authority 
personally  conferred.  The  acts  of  an  unincorporated 
association  only  bind  its  members  so  far  as  it  has  received 
authority  from  the  members.  When  an  association 
appoints  a  committee  it  makes  it  its  agent  for  certain 
purposes. 

In  general  it  is  presumed  that  the  committee  has  not 
the  power  to  deal  on  credit.  The  liability  of  the  mem- 
bers of  the  committee  for  the  acts  of  the  committee  or  of 
any  of  its  members  is  no  greater  than  that  of  the  members 
of  the  association  at  large  unless  by  their  acts  they  ex- 
tend it. 


UNINCORPORATED  ASSOCIATIONS.  45 


CHAPTER    IV. 

MANAGEMENT    OF  AN   UNINCORPORATED  ASSOCIATION- 
CHANGE  OF  RULES— EXPULSION  OF  MEMBERS,  ETC. 

§  25.  An  unincorporated  association  having  been 
formed,  many  interesting  questions  may  arise  concerning 
its  management.  In  general,  such  questions  are  to  be 
determined  by  a  reference  to  the  agreement  under  which 
the  association  exists.  But  it  is  when  this  agreement  is 
inadequate  or  has  been  violated,  that  Courts  of  law  are 
called  upon  to  determine  the  rights  of  the  members. 

In  an  association  of  this  kind,  the  relationship  of 
whose  members  depends  so  much  upon  its  articles  of 
association,  and  its  rules  and  regulations,  it  is  import- 
ant to  observe  how,  if  at  all,  these  articles  and  rules 
may  be  changed.  If  the  articles  provide  for  a  change, 
those  provisions  must,  of  course,  be  followed.  But 
suppose  there  is  no  such  provision,  can  there  be  a 
change;  and,  if  so,  how  can  a  change  be  effected]  As 
these  associations  are  in  their  formation  voluntary,  so  they 
may  at  the  will  of  their  members  be  changed.^  These 
changes  may  be  of  two  kinds :  first,  the  change  may  be 
one  which  affects  the  fundamental  principles  and  pur- 
poses of  the  association,  and  in  that  case  nothing  less  than 
the  unanimous  consent  of  the  members  will  be  suffi- 
cient -^  second,  the  change  may  be  one  which  affects  only 
the  ordinary  operations  of  the  association  without  altering 

'  Atty.-Gen.  vs.  Murdock,  1  DeG.  M.  &  G.  86. 
'  Dawkins  vs.  Autrobus,  11  Ch.  D.  620. 


46  UNINCORPORATED  ASSOCIATIONS. 

any  of  the  essential  features  of  the  contract,  and  in  this 
case  the  agreement  of  the  majority  would  be  sufficient. 

§  26.  The  majority  may  direct  and  control  consistently 
with  the  particular  and  general  laws  of  the  organism,  but 
not  in  violation  of  them.^  In  Unangst  vs.  Shortz,^  when 
a  question  arose  as  to  the  validity  of  the  action  of  cer- 
tain members  of  a  church,  Judge  Banks  said :  "  In  mat- 
ters relating  to  the  church  the  will  of  the  majority  fairly 
expressed  on  any  subject  within  the  range  of  their  au- 
thority, must  govern,  in  the  absence  of  all  rules  to  the 
contrary." 

It  may  be  objected  that  if  the  articles  of  association  are 
to  be  regarded  as  a  contract,  it  cannot  consistently  be 
allowed  that  this  contract  should  be  varied  in  any  way  by 
the  majority  of  the  contracting  parties.  It  is  true  that 
the  contract  between  the  members  can  not  be  violated, 
but  the  articles  of  association  are  only  evidence  of  that 
contract,  and  these  articles  must  be  interpreted  in  the 
light  of  the  purposes  for  which  the  agreement  was  entered 
into.  By  the  very  nature  of  an  unincorporated  association 
there  are  certain  rights  which  are  inherent  in  the  mem- 
bers. Common  consent  and  the  necessities  of  the  case 
have  given  to  the  majority  certain  powers  which  are  sup- 
posed to  be  a  part  of  every  contract  with  reference  to  such 
associations,  unless  expressly  excepted.  Such  a  power, 
however,  must  be  exercised  so  that  the  already  acquired 
rights  of  the  minority  may  not  be  impaired.  AVhat  these 
rights  are  is  a  matter  depending  upon  the  circumstances 
of  each  case. 

Justice  Woodward,  in  Henry  vs.  Deitrich,^  spoke  of  a 

'  Slitter  vs.  Trustees  First  Ref.  Dutch  Church,  6  Wr.  510  ;  Pres- 
byterian Church  vs.  Johnson,  1  W.  &  S.  37. 

»  5  Wharton,  506-513.  »  84  Pa.  286. 


UNINCORPORATED  ASSOCIATIONS.  47 

distinction  which  might  be  made  between  the  exercise  of 
the  power  of  the  majority  for  private  purposes  and  for 
public  purposes,  and  said  that  in  the  latter  case  the 
power  is  to  be  more  favorably  expounded.  Although  this 
distinction  may  be  based  on  reason,  it  is  doubtful  whether 
it  can  be  of  any  practical  benefit.  What  is  an  exercise 
of  power  for  private  purposes  or  for  public  purposes  will 
always  be  a  question  of  considerable  difficulty,  and  it  is 
likely  that,  in  regulating  the  exercise  of  this  power,  each 
case  will  have  to  be  determined  on  its  own  merits. 

No  proportion  greater  than  a  majority  has  more  inher- 
ent authority  than  a  majority.^  What  a  majority  cannot 
do,  two-thirds  or  three-fourths  cannot  do ;  and  what  a 
majority  may  do,  a  larger  proportion  may  not  do  any 
better.  The  principle  that  the  majority  rules  has  grown 
from  necessity  and  the  spirit  of  our  free  institutions. 
The  reasons  which  have  been  influential  in  giving  to 
the  majority  certain  rights  apply  equally  well  but  no 
better  when  the  rights  of  a  larger  proportion  are  con- 
sidered. 

Associations  frequently  adopt  rules  of  government  by 
which  the  consent  of  various  proportions  of  the  members 
shall  be  requisite  to  the  validity  of  various  acts,  and  in 
such  cases  the  constitutional  provisions  must  be  adhered 
to.  There  also  exists  a  code  of  rules  for  parliamentary 
practice,  which  has  acquired  by  common  consent  a  con- 
siderable definiteness,  but  these  are  merely  rules  of  con- 
venience and  have  no  binding  force  upon  an  association 
unless  accepted  by  it. 

Suppose  a  member  of  an  association  opposes  a  motion 
before  its  passage  and  declares  he  will  not  abide  by  it 

'  Atty.-Gen.  vs.  Murdoch,  1  DeG.  M.  &  G.  86  ;  12  Eng.  Law  and 
Eq.  Rep.  83,  98  ;  Opinion  by  Vice-Chancellor  Knight  Bruce. 


48  UNINCORPORATED  ASSOCIATIONS. 

after  its  adoption,  will  he  be  bound  by  the  adoption  of 
the  motion  ]  As  far  as  the  majority  act  within  the  scope 
of  their  power,  the  act  is  as  binding  upon  the  minority 
as  their  own  act  would  be.  If  a  motion  is  properly 
adopted,  a  member,  although  opposing,  will  be  bound  by 
it.^  But  it  may  be  urged  that,  if  the  liability  of  a  member 
of  an  unincorporated  association  is  founded  upon  the  law 
of  asencv,  it  is  inconsistent  that  a  member  should  be  held 
responsible  as  a  principal  for  the  acts  of  other  members 
as  his  agents  done  against  his  directions.  He,  however, 
virtually  approves  of  the  agency  and  the  acts  by  remain- 
ing in  the  association.  The  only  sure  method  of  escaping 
liability  is  to  sever  the  relation  under  which  the  liability 
arises;  even  in  that  way  liability  for  past  acts  of  the 
association  cannot  be  avoided.  One  cannot  be  a  member 
of  an  association  and  enjoy  its  privileges  without  bearing 
the  responsibilities  incident  thereto. 

§  27.  We  have  already  asserted  that  membership  in 
an  unincorporated  association  is  in  itself  legal  property,^ 
and  as  such  it  is  as  sacred  as  any  other  property.  The 
question  then  arises,  what  powers  of  expulsion  do  such 
associations  possess  ?  The  old  notion  that  a  club  itself 
knows  best  what  is  good  for  the  club's  interests,  and  that 
a  Court  will  only  use  its  power  upon  strong  provocation 
has  been  abandoned.'^  At  the  present  day  the  Courts 
very  frequently  exercise  their  power  to  reinstate  an  ex- 
pelled member.  The  best  example  of  this  to  be  found 
in  the  Pennsylvania  Reports  is  the  case  of  Leech  vs. 
Harris,'*  in  which  the  Court  considered  the  powers  which 

'  MacDowell  vs.  Ackley,  93  Pa.  St.  277,  283. 
'  Metropolitan  B.  B.  Club  vs.  Simmons,  17  W.  N.  C.  153. 
'  Article  in  QS  Law  Times,  94  (1879).     Fisher  vs.  Keane,  41  L. 
T.  Rep.  N.  S.  335. 
*  2  Brewster,  571. 


UNINCORPORATED   ASSOCIATIONS.  49 

the  Philada.  Board  of  Brokers,  an  unincorporated  associa- 
tion, might  exercise  over  its  members.  Complaints  con- 
cerning certain  transactions  in  real  estate  were  presented 
to  the  board  against  one  of  the  members  by  a  person  who 
was  not  a  member.  The  board  ordered  these  complaints 
to  be  investigated  and  were  about  to  expel  the  member, 
when  he  filed  a  bill  in  equity,  and  obtained  an  injunction 
restraining  the  board  from  investigating  the  matter  of 
complaint,  and  from  proceeding  against  him  in  any  way 
whatever. 

§  28.  Judge  Pierce,  in  continuing  the  special  injunc- 
tion in  the  above  case,  said :  "I  have  very  Httle  doubt 
that  the  same  rules  of  law  and  equity,  so  far  as  regards 
the  control  of  them  and  the  adjudication  of  their  reserved 
and  inherent  powers  to  regulate  the  conduct  and  expel 
their  members,  apply  to  them  as  to  corporations  and  joint- 
stock  companies." 

What  these  powers  of  regulation  and  expulsion  are  in 
Pennsylvania  is  then  summarized  as  follows : — ^ 

I.  Where  a  charter  of  a  society  provides  for  an  oflfence, 
directs  the  mode  of  proceeding,  and  authorizes  the  society 
on  conviction  of  a  member  to  expel  him,  this  expulsion, 
if  the  proceedings  are  not  irregular,  is  conclusive,  and  can 
not  be  inquired  into  collaterally  by  mandamus  action  or 
any  other  mode. 

II.  The  inherent  power  to  expel  a  member  may  be  ex- 
ercised : — 

I.  Where  an  offence  is  committed  which  has  no  im- 
mediate relation  to  a  member's  corporate  duty,  but  is  of  so 
infamous  a  nature  as  renders  him  unfit  for  the  society  of 

^  Leech  vs.  Harris,  2  Brew.  571-576.     This  summary  was  originally 
given  in  the  opinion  of  C.  J.  Tilghman  in  Com.  vs.  St.  Patrick  Bene- 
volent  Society,  2  Binney,  441,  the  leading  case  on  this  subject  in 
Pennsylvania. 
4 


50  UNINCORPORATED  ASSOCIATIONS. 

an  honest  man.  Such  are  the  offences  of  perjury,  for- 
gery, etc.  But,  before  an  expulsion  is  made  for  a  cause  of 
this  kind,  it  is  necessary  that  there  should  be  a  previous 
conviction  by  a  jury,  according  to  the  law  of  the  land.^ 

2.  When  the  offence  is  against  his  duty  as  a  corpora- 
tor ;  and  in  this  case  he  may  be  expelled,  on  trial  and 
conviction,  by  the  corporation. 

f3.  Where  the  offence  is  of  a  mixed  nature  against  the 
member's  duty  as  a  corporator,  and  also  indictable  by  the 
law  of  the  land. 

§  29.  Another  interesting  point  arose  in  the  case  of 
Beech  vs.  Harris.^  It  will  be  observed  that  the  board  had 
not  adjudicated  nor  finally  acted  upon  the  complaint,  and 
the  plaintiff  only  averred  that  he  was  convinced  that  the 
board  would  suspend  him.  It  was  argued  that  the  plain- 
tiff had  come  too  soon,  and  that  the  bill  could  not  be 
maintained  until  the  board  had  taken  future  action.  But 
the  Court  in  overruling  this  point  said  :  "  Equity  prevents 
mischief  It  does  not  wait  until  it  is  consummated.  It 
does  not  even  measure  the  paces  by  which  it  advances. 
It  meets  it  at  the  very  threshold,  and  seeks  to  prevent  a 
meditated  wrong  more  often  than  to  redress  an  injury 
already  done." 

§  30.  The  law  does  not  permit  an  association  to  insert 
in  its  rules  indefinite  powers  of  expulsion.  It  is  totally 
incompatible  with  the  whole  spirit  of  our  institutions  to 
clothe  any  body  with  such  indefinite  power  over  its  mem- 
bers ;  for  it  is  equivalent  to  socialism,  and  it  is  a  rejection 
of  all  individual  rights,  within  the  association.''     If  indefi- 

'  The  right  of  trial  by  jury  for  indictable  offences  is  a  constitutional 
right.  If  tried  by  the  tribunal  of  an  association,  there  would  be  no 
compulsory  process  for  obtaining  witnesses. 

'  2  Brewster,  571-588. 

'  Lowrie,  C.  J.,  in  the  Butchers'  Beneficial  Association,  11  Casey, 
151  ;  Evans  vs.  Philada.  Club  and  cases  cited  therein. 


UNINCORPORATED  ASSOCIATIONS.  51 

nite  powers  of  expulsion  existed,  the  designing  members 
of  an  association  could  combine  to  expel  their  fellow- 
members  under  various  pretences,  and  after  having  ob- 
tained control  of  the  organization  dissolve  it  and  divide 
the  property  among  themselves. 

Whenever  such  a  power  is  given  by  the  rules  of  the 
association,  the  law  adds  to  it  the  qualification  that  it 
must  be  exercised  in  good  faith,^  and  for  the  interests  of 
the  association.  In  Richardson-Gardner  vs.  Freemouth 
(1871),^  a  bill  was  filed  by  the  complainant  against  mem- 
bers of  the  committee  of  the  Junior  Carlton  Club,  from 
which  he  had  been  expelled,  praying  that  he  be  restored 
to  membership.  There  was  a  rule  of  the  club  that  "  in 
case  the  conduct  of  any  member,  either  in  or  out  of  the 
club-house,  shall,  in  the  opinion  of  the  committee,  be  in- 
jurious to  the  character  and  interests  of  the  club,  the 
committee  shall  be  empowered  to  request  such  member 
to  resign,"  and,  upon  his  failure  to  resign,  a  discretion 
was  given  to  two-thirds  of  the  members  present  to  expel 
him.  In  accordance  with  this  rule  the  complainant  was 
expelled,  and  Lord  Romilly,  in  refusing  to  reinstate  him, 
said :  "  It  is  to  be  observed  that  these  clubs  are  formed 
for  social  purposes,  and  there  must  be  some  paramount 
authority  to  keep  up  their  objects.  In  some  cases  this 
Court  will  interfere  with  the  exercise  of  that  paramount 
authority,  but  only  where  there  is  a  moral  culpability,  as 
if  the  decision  has  been  arrived  at  from  fraud,  personal 

hostility,  or  bias If  the  decision  has  been  arrived 

at  bona  fide,  without  any  caprice  or  improper  motive,  then 
it  is  a  judicial  opinion  from  which  there  is  no  appeal." 

*  Bona  Jide  means  that  they  shall  act  with  some  cause,  or,  as  the 
law  phrases  it,  reasonable  and  probable  cause.  Sir  George  Jessel,  in 
Darkins  vs.  Artrobus,  1 1  Ch.  D.  620. 

*  24  L.  T.  N.  S.  81. 


52  UNINCORPORATED  ASSOCIATIONS. 

The  same  principle  was  applied  by  Lord  Romilly  in  Hop- 
kins vs.  Marquis  of  Exeter.^ 

In  Commonwealth  vs.  Green  (1839),^  one  of  the  ques- 
tions which  came  before  the  Supreme  Court  of  Pennsyl- 
vania was  as  to  the  validity  of  certain  actions  of  the 
General  Assembly  of  the  Presbyterian  Church  of  the 
United  States  in  cutting  off  certain  synods  from  member- 
ship in  that  body.  Chief  Justice  Gibson,  in  delivering 
the  opinion  of  the  Court,  said  that  if  the  Assembly  pro- 
ceeded in  good  faith,  the  validity  of  its  enactments  could 
not  depend  on  the  justness  of  its  conclusions.  "  We  have 
no  authority  to  rejudge  its  judgments  on  their  merits." 

§  31.  Not  only  must  this  discretion  be  exercised  in  good 
faith,  but  the  person  against  whom  it  is  exercised  must 
be  given  an  opportunity  of  explaining  or  defending  his 
conduct.  And  this  is  a  general  principle,  that  in  all  cases 
of  judicial  inquiry  where  a  man  may  be  deprived  of  his 
rigbts,  he  must  be  given  an  opportunity  of  defending  him- 
self. In  the  case  just  mentioned,  Judge  Gibson  said : 
"  Now,  had  the  exscinded  synods  been  cut  off  by  a  judi- 
cial sentence  without  hearing  or  notice,  the  act  would 
have  been  contrary  to  the  ordinary  principles  of  natural 
justice,  and  consequently  void." 

The  same  principle  was  laid  down  in  O'Hara  vs.  Stack.'' 
The  Court  in  that  case  said  :  "  It  is  a  maxim  of  funda- 
mental law,  that  no  man  shall  be  condemned  without  a 
hearing.    A  hearing  assumes  notice  of  the  specific  grounds 

'  L.  R.  5  Eq.  63;  Lyttleton  vs.  Blackburn,  33  L.  T.  S.  642  ;  Gard- 
ner rs.  Freemouth,  19  W.  R.  256. 

*  4  Wharton,  531.  See  also  Frey  vs.  Fidelity  Lodge,  etc.,  6  Pa.  C. 
C.  Rep.  435  ;  46  Leg.  Int.  118,  deciding  that  the  rights  of  those  who 
claim  through  members  of  beneficial  societies  are  determined  by  the 
peculiar  laws  of  each  association. 

»  90  Pa.  477-490. 


UNINCORPORATED  ASSOCIATIONS.  O^^ 

of  complaint,  and  a  reasonable  opportunity  for  answering 
them.  In  all  matters  of  faith  and  of  doctrine  churches 
will  be  left  to  speak  for  themselves.  When  rights  of 
property  are  in  question,  civil  Courts  will  inquire  whether 
the  organic  rules  and  forms  of  proceeding  prescribed  by 
the  ecclesiastical  body  have  been  followed." 

This  principle  was  established  in  an  early  case,  Innes 
vs.  Wylie,^  and  has  been  reiterated  in  many  subsequent 
cases.  In  Willis  vs.  Child,^  the  trustees  of  a  school  were 
restrained  from  enforcing  a  resolution  removing  a  school- 
teacher because  it  appeared  that  he  had  no  proper  oppor- 
tunity afforded  him  of  defending  himself  or  explaining 
his  conduct. 

In  Fisher  vs.  Keene  (1879),^  a  member  of  the  Army 
and  Navy  Club,  who  had  been  expelled  by  the  committee 
without  notice  to  him  and  without  having  heard  all  the 
circumstances  of  the  case,  filed  a  bill  against  the  trustees 
and  committee  of  the  club,  asking  that  the  resolution  be 
declared  void.  The  petition  was  granted,  first,  because 
the  rules  of  the  club  concerning  expulsions  had  not  been 
adhered  to ;  and  second,  because,  had  the  rules  justified 
the  action,  the  method  of  carrying  them  in  force  was  not 
such  as,  according  to  the  rules  of  conducting  judicial,  or 
quasi-judicial  proceedings,  ought  to  have  been  adopted. 

In  a  late  case,  Sperry's  Appeal,"  it  appeared  that  the 
plaintiff  was  a  member  of  a  beneficial  society,  and  on 
charges  of  fraud  and  feigning  sickness  in  order  to  obtain 
sick  benefits  was  suspended  from  the  society.  He  then 
brought  a  bill  in  equity,  asking  reinstatement,  and  alleg- 
ing, among  other  irregularities  in  the  proceeding  under 

1  1  C.  &  K.  257  ;  47  Eng.  Com.  Law. 

*  13  Beav.  117. 

'  41  L.  T.  N.  S.  335  ;  Dean  vs.  Bennet,  L.  R.  C  Chan.  489. 

*  116  Pa.  391 ;  2  Pa.  Sup.  Ct.  Dig.  192. 


54  UNINCORPORATED  ASSOCIATIONS. 

which  he  was  suspended,  that  the  committee  before  whom 
he  was  tried  rejected  the  evidence  of  the  physician  who 
had  attended  him.  The  lower  Court  made  a  decree  in 
favor  of  the  plaintiff,  but  on  appeal  this  decree  was 
reversed.  The  members  of  the  Supreme  Court  were 
divided  in  their  opinions  as  to  whether  the  decree  should 
be  reversed,  although  it  was  admitted  that  the  rejection 
of  the  evidence  of  the  physician  who  attended  the  plain- 
tiff was  a  mistake.  Mr.  Justice  Gordon,  who  delivered 
the  opinion  of  the  Court,  said :  "  Admitting  that  this 
evidence  might  have  been  relevant  for  some  purposes, 
and  ought  therefore  to  have  been  admitted,  nevertheless, 
it  does  not  appear  that  it  was  anything  more  than  a 
mistake  in  the  judgment  of  the  committee,  nor  does  it 
appear  that  any  complaint  was  made  of  this  ruling  on  the 
subsequent  trial  in  the  lodge Here,  if  we  are  to  be- 
lieve the  master,  was  an  appearance,  a  regular  adjudication, 
and  no  complaint  made  of  the  action  of  the  committee,  a 
clear  waiver  of  the  defect  complained  of"  It  will  be  seen 
that  the  decision  was  based  upon  two  grounds:  first,  that 
the  irregularity  was  only  a  mistake  in  the  judgment  of  the 
committee  which  a  Court  of  law  would  not  inquire  into 
collaterally ;  second,  that  there  was  a  waiver  of  the  defect. 
Upon  the  first  of  these  points  Mr.  Justice  Green,  in  his 
dissenting  opinion  (Mr.  Justice  Trunkey  concurring),  took 
issue,  and,  we  believe,  sustains  the  justice  of  his  views. 
The  weight  of  authority  and  of  reason  goes  to  show  that 
in  proceeding  against  corporators,  within  the  corporation, 
whether  for  suspension  or  expulsion  the  procedure  must 
be  in  conformity  with  the  organic  law  of  the  corporation  ; 
the  cause  must  be  sufficient,  the  trial  and  proceedings 
must  be  regular,  and  the  proof  must  be  at  least  adequate 
in  the  judgment  of  the  corporation ;  and  in  case  of  a 
contest  in  the  civil  courts  that  fact  must  affirmatively 


UNINCORPORATED  ASSOCIATIONS.  55 

appear  in  the  answer  or  return  of  the  corporation.  As 
to  the  second  point,  whether  the  action  of  the  plaintiff 
was  a  waiver  of  the  defect,  it  does  not  clearly  appear  just 
what  is  sufficient  to  constitute  a  waiver  of  an  irregularity. 
In  this  case  the  doctrine  of  waiver  was  certainly  carried 
to  a  great  length,  especially  when  we  consider  that  the 
proceedings  before  the  committee  and  before  the  lodge 
were  not  conducted  with  the  formal  requisites  of  judicial 
trials,  that  the  ordinary  rules  of  evidence  were  not 
followed,  and  that  both  the  suspended  member  and  his 
representative  at  the  trial  were  laymen  and  not  expected 
to  take  formal  exceptions  with  legal  accuracy.  Yet  it 
seems  to  be  the  law  of  Pennsylvania,  as  recently  expressed 
by  the  Supreme  Court,  that  almost  technical  care  must  be 
taken  by  a  member  in  the  assertion  of  his  rights  in  order 
to  protect  himself  from  irregularities  in  the  action  of  his 
association  towards  him. 

§  32.  A  society  may  however  depose  its  members  from 
positions  of  trust  and  confidence  in  the  management  of 
its  affairs  without  assigning  any  cause.  In  Brown  vs. 
Griffin,^  a  lodge  of  the  United  Order  of  Brothers  and 
Sisters  of  Love  and  Charity,  a  beneficial  association, 
appointed  trustees  for  the  purpose  of  depositing  funds  in 
a  bank.  These  trustees  were  deposed  and  others  ap- 
pointed, but  the  old  trustees  refused  to  give  up  the  books 
containing  the  entries  of  deposits,  and  the  bank  refused 
to  recognize  the  new  trustees.  A  bill  was  filed  against 
the  bank  and  the  old  trustees  to  compel  the  delivery  of 
the  books,  and  to  restrain  the  bank  from  paying  money 
on  the  order  of  the  old  trustees.  One  of  the  old  trustees 
demurred,  alleging  that  the  bill  set  forth  no  sufficient 
grounds  for  the  removal  of  the  trustees.     The  demurrer 

»  13  W.  X.  C.  91. 


56  UNINCORPORATED  ASSOCIATIONS. 

was  overruled  on  the  ground  that  trustees,  without  inter- 
est, might  be  removed  at  the  pleasure  of  the  association 
which  appointed  him. 

§  33.  Equity  will  interfere  to  prevent  abuses  of  power 
within  an  association,  and  to  restore  members  to  their 
rights  as  well  as  to  restrain  the  illegal  expulsion  of  a 
member.  In  Beasly  vs.  Allyn,^  the  complainants  were 
members  of  the  Philomathean  Society  of  the  University 
of  Pennsylvania,  an  unincorporated  association.  A  bill 
was  filed  to  compel  the  restoration  to  the  society  of  a 
wooden  bowl  which  it  was  claimed  had  been  presented  to 
the  respondents  in  violation  of  the  rules  of  the  society,  and 
of  the  rights  of  the  minority  of  the  members.  A  demurrer 
to  this  bill  was  filed,  and  Judge  Allison,  in  his  opinion  over- 
ruling the  demurrer,  suggested  this  question :  "  Whether  a 
voluntary  society  of  this  kind,  without  a  charter,  and  not 
a  charity,  can  by  a  majority  vote  bind  the  minority  who 
object  to  giving  away  or  otherwise  disposing  of  the 
property  of  the  society,  there  being  no  such  power  given 
by  the  law  of  the  body  V^  Upon  the  principles  we  have 
stated,  we  would  answer,  "  No."  It  would  be  a  violation 
of  vested  rights.  Unless  sanctioned  either  by  the  rules, 
or  by  the  nature  and  purposes  of  the  society,  it  would  not 
be  valid.  Where  no  provision  is  made,  or  where  such  an 
action  does  not  fall  within  the  general  purpose  for  which 
the  society  was  instituted,  a  part  of  those  who  hold 
property  in  common  cannot  exercise  a  donative  power 
over  it ;  otherwise,  the  property  of  the  association  might 
be  voted  to  parties  or  for  purposes  in  which  the  donors 
alone  were  interested.  It  has  been  decided  that  the 
majority  cannot  borrow  money  and  make  the  minority 
liable  for  its   repayment  without   any  provision  in   the 

1  12  W.  N.  C.  90. 


UNINCORPORATED  ASSOCIATIONS.  57 

articles  of  association,  or  without  their  assent  or  ratifica- 
tion.^ And  it  is  equally  just  that  they  should  not  be  able 
to  give  away  property  in  which  the  minority  arc  joint 
owners,  without  their  assent. 

1  Ash  vs.  Guie,  1  Out.  493. 


58  UNINCORPORATED  ASSOCIATIONS. 


CHAPTER   V. 

ASSOCIATION   RIGHTS  AND  LIABILITIES— PROPERTY- 
CONTRACTS— RIGHTS  OF  SUIT. 

§  34.  An  unincorporated  association  may  possess  prop- 
erty. Nothing  is  more  common  than  for  such  associations 
to  have  houses,  furniture,  books,  etc.  It  may  have  an 
equitable  title  to  real  estate,  but  it  cannot  buy,  hold,  and 
sell  in  its  own  name  like  a  corporation.  Its  property 
must  be  held  in  trust  for  it,  and  a  Court  of  equity  will 
compel  the  trustees  to  carry  out  the  purposes  of  the 
trust. 

The  interest  which  members  have  in  such  property  is 
like  that  possessed  by  tenants  in  common.  In  Livingstone 
vs.  Lynch,^  the  relation  of  the  stockholders  of  the  North 
River  Steamboat  Company,  an  unincorporated  company 
possessing  certain  rights  and  privileges  of  navigation,  came 
before  the  New  York  Courts,  and  Chancellor  Kent,  in  an 
elaborate  opinion,  held  that  the  members  were  tenants  in 
common  of  these  rights  and  privileges. 

§  35.  Upon  the  dissolution  of  the  association  the  prop- 
erty would  ordinarily  be  divided  among  the  members ;  but 
if  the  property  be  trust  property,  equity  will  decree  its 
application  to  the  purposes  of  the  trust.  If  the  associa- 
tion; be  a  branch  or  offspring  of  some  superior  or  parent 
body,  from  which  it  has  received  its  warrant  or  charter, 
and  the  rules  of  the  superior  body  require   that   upon 

^  5  Johnson's  Chancery  Rep.  573. 


UNINCORPORATED  ASSOCIATIONS.  59 

dissolution  or  expulsion  of  the  dependent  association  its 
property  shall  go  to  the  superior  body,  that  disposition  of 
the  property  will  be  carried  out.  The  act  of  the  26th 
June,  1883,  provided,  that  under  such  circumstances  in 
the  case  of  benevolent,  charitable,  or  beneficial  associa- 
tions the  property  of  the  minor  association  shall  be  con- 
sidered as  trust  property  for  the  parent  or  superior  body. 

§  36.  The  rights  and  liabilities  of  members  of  unincor- 
porated associations  may  be  enforced  by  suits,  which  may 
be  brought  in  two  ways : — 

1.  By  or  against  the  individual  members. 

2.  By  or  against  the  association. 

Suits  of  the  former  kind  do  not  require  to  be  particu- 
larly mentioned  in  this  essay.  They  are  brought  in  the 
ordinary  form  of  suits  between  individuals,  and  only  differ 
from  other  suits  of  that  character  in  that  it  may  be  shown 
that  the  rights  or  liabilities  which  they  are  brought  to  en- 
force arise  through  the  medium  of  an  association.  Such 
suits  may  be  brought  either  at  law  or  in  equity.  Instances 
at  law  are  Todd  vs.  Emley,^  Eichbaum  vs.  Irons,^and  Cham- 
bers vs.  Calhoun.^  Instances  in  equity  are  Cullen  vs.  The 
Duke  of  Queensbury,*  and  Metropolitan  Base  Ball  Club 
vs.  Simmons  and  others.^  They  are  subject  to  the  ordi- 
nary rules  governing  suits  by  individuals  against  individu- 
als. If  the  right  or  liability  for  the  enforcement  of  which 
the  suit  is  brought  be  a  joint  right  or  liability  arising 
through  membership  in  the  association,  the  proper  parties 
must  be  joined,  in  the  same  manner  as  if  it  had  arisen  by 
contract.  In  Beaumont  vs.  Meredith^  a  bill  was  filed  by 
some  members  of  an  unincorporated  association  against 
seven  members  in  their  individual  capacity,  praying  an 

»  8  M.  &  W.  505.  '  6  W.  &  S.  67. 

»  18  Pa.  13.  *  1  Bro.  Ch.  Ca.  101. 

^  17  W.  N.  C.  153.  ^  3  Ves.  and  Bea.  180. 


60         ;  UNINCORPORATED  ASSOCIATIONS. 

account  and  injunction.  There  were  forty-seven  other 
members  standing  in  the  same  position  as  the  defendants, 
and  the  bill  was  dismissed  for  the  non-joinder  of  the 
proper  parties  defendant. 

If  all  the  parties  who  incur  a  joint  liability  are  not 
joined,  it  may  be  the  subject  of  a  plea  in  abatement,  and 
the  Court  will  allow  such  amendments  to  be  made  as  are 
shown  to  be  necessary.  In  Ash  vs.  Guie,^  where  an  at- 
tempt was  made  to  charge  the  members  of  a  lodge  with 
a  joint  liability,  and  it  was  objected  that  some  of  the 
parties  were  omitted,  the  Supreme  Court  said  :  "  But  they 
cannot  complain  if  the  plaintiff  fails  to  include  every  one 
in  the  action  who  is  liable,  or  fails  to  discover  proof 
against  every  one  included.  In  the  nature  of  the  case  it 
is  difficult  for  the  plaintiff  to  determine  in  advance  the 
precise  individuals  who  are  liable,  although  he  be  sure  of 
some,  and  the  Court  below  has  not  been,  and  is  not  likely 
to  be,  slow  to  allow  necessary  amendments  authorized  by 
statute." 

In  Pennsylvania  equitable  principles  are  sometimes  ad- 
ministered under  common  law  forms  so  that  some  actions 
might  be  maintained  at  law  which,  in  England,  would 
only  be  permitted  in  equity ;  for  instance,  in  Chambers  vs. 
Calhoun,'^  where  there  were  three  surviving  members  of 
a  building  committee,  two  of  them  were  allowed  to  main- 
tain an  action  against  the  third  for  a  subscription  payable 
to  the  committee.  Chief  Justice  Gibson  said  that,  al- 
though such  a  suit  could  not  be  maintained  in  England, 
it  may  be  permitted  in  Pennsylvania  in  order  to  prevent 
a  failure  of  justice;  and  the  dropping  of  the  name  of  the 
promissor  from  the  plaintiffs  in  the  suit  lessened  the  ap- 
pearance of  irregularity. 

'  1  Out.  493.  '  18  Pa.  13. 


UNINCORPORATED  ASSOCIATIONS.  61 

§  37.  An  unincorporated  association  may  acquire 
rights  and  incur  liabilities  by  contracts,  and  these  may  be 
enforced  by  suits  brought  by  or  against  the  association. 
Justice  Lowrie,  speaking  of  unincorporated  religious  so- 
cieties, said  that  there  ought  to  be  no  doubt  about  their 
rights  to  sue  on  a  contract  made  with  them  in  their  asso- 
ciate capacity,  and  for  the  legitimate  purposes  of  their 
association,  even  though  there  be  no  person  named  or 
described  in  the  contract  as  trustees  or  committeemen  on 
behalf  of  the  society.^  These  suits  may  be  brought  either 
in  equity  or  in  common  law  Courts,  and  they  may  be 
brought  by  or  against  either  members  of  the  association 
or  persons  outside  of  the  association.  So  that  there  are 
four  heads  under  which  these  suits  may  be  considered : 
first,  suits  brought  by  a  member  against  an  association ; 
second,  by  an  association  against  a  member ;  third,  by  a 
stranger  against  an  association  ;  and  fourth,  by  an  associ- 
ation against  a  stranger. 

An  unincorporated  association  cannot  sue  or  be  sued 
in  its  own  name.^  Such  suits  must  be  brought  by  indi- 
viduals in  behalf  of  the  association  or  against  individuals 
who  represent  it.  The  general  rule  as  to  joinder  of  parties 
is  that  all  persons  interested  in  the  subject-matter  of  a 
suit,  although  numerous,  must  be  made  parties  to  it.  But 
this  rule,  if  applied  to  unincorporated  associations,  would 
work  great  inconvenience.  The  members  are  usually 
numerous  and  difficult  to  ascertain.  In  many  cases  they 
are  constantly  changing  and  the  proceedings  would  be 
subjected  to  perpetual  abatements  and  delays.  Undei 
these  circumstances,  as  there  is  a  privity  of  interest,  suits 
may  be  brought  by  or  against  some  of  the  parties  as  rep- 

^  Phipps  vs.  Jones,  8  Harris,  263 ;  Ryerss  vs.  Cong,  of  Blossburg, 
9  Casey,  117. 

»  Paul  vs.  Keystone  Lodge,  3  W.  N.  C.  408. 


62  UNINCORPORATED  ASSOCIATIONS. 

resenting  themselves  and  all  the  others,  care  being  taken 
that  there  shall  be  a  due  representation  of  all  substantial 
interests  before  the  court.^  And  this  is  permitted  in  law 
as  well  as  in  equity. 

In  Phipps  vs.  Jones,"  it  was  said  that  if  the  English 
common  law  forms  are  not  sufficient  for  such  cases,  we 
admit  the  infusion  into  our  law  of  the  plain  equity  prin- 
ciples that  allow  a  committee  of  voluntary  societies  to  sue 
and  be  sued  as  representatives  of  the  whole. 

§  38.  First.  Suits  brought  by  a  member  against  the 
association. 

In  suits  of  this  kind  all  the  members  of  the  association 
may  be  joined  as  parties  defendant  or  suit  maybe  brought 
against  the  committee,  the  trustees,  or  a  number  of  the 
members  representing  the  association.  In  Bromley  vs. 
Williams,^  a  bill  was  brought  by  the  assignee  in  bank- 
ruptcy of  a  member  of  "  The  St.  Ives  Shipping  Insurance 
Club"  against  the  treasurer,  secretary  and  seven  members 
as  representing  the  association.  A  demurrer  to  the  bill 
for  non-joinder  of  the  proper  parties  was  overruled.  Sir 
John  Romilly,  Master  of  the  Rolls,  stated  that  the  rule 
which  formerly  existed,  that  all  the  parties  defendant 
must  be  joined,  had  been  modified  to  suit  the  exigencies 
of  modern  practice,  and  that  the  rule  was  well  established 
that  two  or  three  of  a  class  may  be  made  defendants  to 
represent  the  class.  In  Pearce  vs.  Piper,*  the  court  enter- 
tained a  bill  for  an  account  filed  by  certain  members  of 
an  association  for  raising  an  annuity  fund  against  the 
trustees  of  the  fund  of  the  society.  Suits  by  expelled 
members  of  a  club  seeking  a  restitution  of  their  rights 

^  Story's  Equity  Pleading,  sections  75  and  107.  Maguire's  Est.,  7 
W.  N.  C.  214. 

'  20  Pa.  230;  Ryerss  vs.  Cong,  of  Blossburg,  9  Casey,  114. 
»  32  Beav.  177.  *  17  Ves.  1. 


UNINCORPORATED  ASSOCIATIONS.  63 

are  very  common ;  and  in  such  suits  the  committee  of 
the  club  are  usually  made  defendants,  and  with  them  are 
sometimes  joined  the  trustees.^ 

There  are  a  number  of  instances  of  suits  brought  by  a 
member  against  the  association  in  Pennsylvania.  In 
Leech  vs.  Harris,^  a  member  of  the  Philadelphia  Board 
of  Brokers,  whose  membership  was  threatened,  filed  a 
bill  against  the  committee  and  members  of  the  board. 
Shriber  vs.  Rapp^  was  a  common  law  action  of  account- 
render  by  the  administrator  of  a  deceased  member  of  a 
society  of  socialists  against  seven  members  representing 
the  society.  In  Singerly  vs.  Johnson,^  an  action  of  as- 
s^impsit  was  brought  by  the  administrator  of  a  deceased 
member  of  the  Philadelphia  Board  of  Brokers  against  the 
treasurer  and  others,  representing  the  board,  to  recover 
the  proceeds  of  the  sale  of  a  seat  in  the  board. 

Although  a  number  of  members  may  be  sued  as  repre- 
senting the  whole  association,  yet  if  the  association  has 
appointed  particular  persons  to  occupy  this  represen- 
tative capacity,  suits  under  this  head,  being  brought  by 
members  who  are  supposed  to  know  the  rules  and  opera- 
tions of  the  association.,'  will  be  required  to  be  brought 
against  the  proper  persons. 

Under  this  head  occur  suits  by  members  against  bene- 
ficial societies.  At  the  present  day  these  societies  are 
very  numerous,  and  suits  against  them  for  the  benefits 
which  they  are  intended  to  confer  frequently  occur. 
The  act  of  28th  April,  1876,  declared  that  the  members 

'  Richardson-Gardner  vs.  Freemouth,  24  L.  T.  N.  S.  81  ;  Hopkin- 
son  vs.  Marquis  of  Exeter,  L.  R.  5  Eq.  63  ;  Fisher  vs.  Keene,  41  L. 
T.  N.  S.  335. 

»  2  Brewster,  371.  »  5  Watts,  351. 

*  1  W.  N.  C.  122 ;  3  W.  N.  C.  540. 

*  Raggett  vs.  Musgrove,  2  C.  &  P.  556  ;   12  Eng.  Com.  Law. 


64  UNINCORPORATED  ASSOCIATIONS. 

of  beneficial  associations  should  not  be  individually  liable 
for  the  payment  of  benefits  or  other  liabilities  of  the  lodge 
or  other  organization,  but  that  the  same  should  be  pay- 
able out  of  the  treasury  of  such  lodge  or  organization. 
Therefore  suits  for  these  benefits  which  might  previously 
have  been  brought  in  any  of  the  ways  in  which  suits 
might  have  been  brought  to  enforce   liability  incurred 
through  any  other  unincorporated   association  can  now 
only  be  maintained  against  the  beneficial  association  in 
its   associate    capacity.     In    Pritchett  vs.  ShaflPer,^  which 
was   tried  previous  to   the  passage  of  the  act  of  2.8th 
April,  1876,  a  recovery  was  allowed  by  a  member  of  a 
beneficial  association  who  filed  a  bill  against  the  officers 
and  members  of  the  association  for  sick  benefits.     Shortly 
after  the  passage  of  this  act,  in  Paul  vs.  Keystone  Lodge,^ 
an   action   of   assumpsit   for   sick  benefits  was   brought 
against  "  The  Keystone  Lodge  No.  2,  Knights  of  Pythias" 
(eo  nomine),  by  a  member  of  the  lodge.     The  defendant 
demurred  and  alleged  that  the  plaintiff"  could  not  main- 
tain this  action  against  his  co-partners.     Judge  Ludlow 
sustained  the  demurrer,  and  said :   "  We  concur  in  the 
opinion  of  Allison,  P.  J.,  in  Pritchett  vs.  Shaffer,  and  as 
it  appears  on  the  face  of  the  record  that  the  defendant 
is  an  unincorporated  society,  we  hold  that  the  present 
action  cannot  be  sustained :"  then,  after  citing  the  act  of 
28th  April,  1876,  he  concluded,  "  In  some  vi'ay,  therefore, 
you  may  reach  the  funds  in  the  hands  of  the  treasurer, 
but  it  is  doubtful  whether  it  would  not  be  better  to  file  a 
bill  in  equity  and  let  chancery  exercise  its  control  over 
them."     It  does  not  appear  clearly  upon  what  grounds 
the  judge  sustained  the  demurrer.^     It  may  have  been, 

1  2  W.  N.  C.  317.  '  3  W.  N.  C.  408  (Feb.  8,  1877). 

*  The  case  is  very  briefly  reported. 


UNINCORPORATED  ASSOCIATIONS.  G5 

either  because  the  association  was  a  partnership,  and 
therefore  an  action  at  hiw  would  not  lie  between  the 
members,  or,  because  the  action  being  brought  against 
the  society  in  its  associate  name,  was  improperly  brouwlit. 
We  conceive  that  the  second  of  these  is  the  irround 
intended,  for  if  it  be  the  first,  the  opinion  is  only  ex- 
pressed that  it  might  be  better  to  file  a  bill  in  equity. 
This  view  of  the  ground  upon  which  the  demiuTer  was 
sustained,  is  confirmed  by  the  case  of  Kurz  vs.  Eggert,^  a 
case  precisely  similar  in  circumstances  to  Paul  vs.  Key- 
stone Lodge,  but  diff"erent  in  form.  It  was  assumpsit  for 
sick  benefits  by  a  member  of  '•  The  Augusta  Teutonia 
Lodge  No.  34,  Deutsche  Order  of  Hamgri,''  against  the 
officers  of  said  lodge.  The  defendants  demurred  and 
alleged  that  the  suit  was  improperly  brought  against  the 
officers  of  the  lodge.  Judge  Allison  (with  wliom  Judge 
Ludlow  agreed  in  his  opinion  as  to  status  of  beneficial 
associations)  said :  "  We  think  that  such  an  action  may 
be  maintained  at  law.  In  the  present  instance,  however, 
the  suit  is  not  properly  brought."  This  view  of  the  form 
of  the  suit  is  in  harmony  with  the  expression  of  Judge 
Arnold,  in  Commonwealth  vs.  Yolz.^  "  The  country  is 
full  of  these  associations,  doing  much  good  among  the 
working  people,  and  it  is  essential  that  the  relief  they 
afford  should  come  promptly  and  not  be  delayed  by  suits 
as  between  partners." 

So  that  we  may  draw  from  these  cases  the  following 
conclusions : — 

1.  The  members  of  beneficial  associations  may  bring 
suit  either  in  equity  or  at  law. 

2.  Beneficial  associations  cannot  be  sued  in  their  asso- 
ciate name. 

1  9  W.  N.  C.  126.  '  U  W.  N.  C.  289. 

5 


66  UNINCORPORATED  ASSOCIATIONS. 

3.  The  officers  or  members  of  beneficial  associations 
cannot  be  sued  in  their  individual  capacity. 

4.  The  members  of  a  beneficial  association  may  bring 
suit  either  against  all  the  members  as  co-defendants,  or 
against  a  number  of  the  members  as  representing  the 
association.  If  the  defendants  plead  in  abatement  the  non- 
joinder of  the  proper  parties,  such  a  plea  must  give  the 
plaintiff  a  better  form  by  showing  who  should  be  joined. 
The  form  may  then  be  altered  and  the  action  proceed. 

§  39.  Second,  suits  brought  by  the  association  against 
a  member. 

This  class  is  just  the  reverse  of  the  first  class.  The 
suits  in  both  cases  being  brought  concerning  matters 
within  the  association,  and  with  which  both  parties  are 
equally  conversant,  are  governed  by  the  same  rules.  An 
instance  under  this  head  in  equity  is  Brown  vs.  Griffin,^ 
in  which  fifteen  members  were  permitted  to  represent  the 
association  in  a  bill  against  two  of  the  members.  In- 
stances at  law  are  Raggett  vs.  Bishop,"  and  Raggett  vs. 
Musgrave,'^  in  which  a  house  steward  of  a  club,  who  was 
empowered  to  represent  the  club  in  the  collection  of  the 
house-bills,  was  permitted  to  maintain  an  action  against  a 
member  for  his  subscription. 

A  case  which  is  a  good  illustration  under  this  head, 
and  which  also  established  an  interesting  point,  is  Unangst 
vs.  Shortz.^  It  was  decided  in  that  case  that  when 
trustees  hold  property  for  an  unincorporated  society,  the 
society  may  compel  them  to  permit  the  use  of  their  names 
in  suits  at  law  to  protect  that  property.  Two  persons 
were  trustees  of  property  for  the  use  of  a  religious  con- 
gregation, and  an  action  of  trespass  qnare  dausum  f  regit 

'  13  W.  N.  C.  91.  «  2  C.  &  P.  343  ;  12  Eng.  Com.  Law. 

3  2  C.  &  P.  556;  12  Eng.  Com.  Law.  *  5  Wharton,  566. 


UNINCORPORATED  ASSOCIATIONS.  67 

was  brought  in  their  name  against  eleven  members  of  the 
congregation.  One  of  the  trustees  refused  to  unite  in  the 
action,  and  declared  his  willingness  to  permit  the  defend- 
ants to  use  the  property.  A  bond  of  indemnity  against 
the  costs  of  the  suit  was  given  him,  and  the  form  of  the 
action  was  held  good. 

Under  this  head  may  also  be  placed  those  cases  in 
which  one  branch  of  an  association  brings  suit  against 
certain  members,  or  another  branch  of  the  association.  If 
the  members  are  too  numerous  to  sue  in  their  individual 
capacity,  several  persons  may  be  taken  to  represent  the 
others.^  Where  two  congregations  formed  a  united  con- 
gregation, and  some  of  the  members  from  each  of  the 
congregations  attempted  to  obtain  control  of  the  property, 
a  bill  against  them  by  the  ministers  and  officers  of  the 
other  congregation  was  sustained.^ 

§  40.  Third,  by  a  stranger  against  the  association. 

Suits  by  a  stranger  against  the  association  only  differ 
from  suits  by  a  member  against  the  association  in  that 
the  plaintiff  is  not  presumed  to  be  acquainted  with  the 
rules  or  regulations  of  the  association.  If  the  suit  be 
brought  in  an  improper  form,  and  the  impropriety  is  such 
that  it  could  not  reasonably  have  been  known  by  a  stran- 
ger, it  may  be  amended ;  for  instance,  if  the  proper  parties 
defendant  be  not  joined,  and  the  error  be  objected  to  by 
a  plea  in  abatement,  it  will  be  permitted  to  correct  the 
error. 

Under  this  head  may  be  classed  suits  by  one  association 
against  another.  These  cases  have  frequently  arisen 
where  religious  congregations  have  united  to  worship  in 
one   house,  and   difficulties   or    misunderstandings  have 

^  Broomley  vs.  AVilliams,  32  Beav.  177  ;  see  opinion  by  Sir  John 
Romilly. 

^  Henry  vs.  Deitrich,  84  Pa.  286. 


68  UNINCORPORATED  ASSOCIATIONS. 

arisen  between  them.^  In  such  cases  resort  has  been  fre- 
quently had  to  courts  of  justice,  and  such  suits  are  usually 
brought  in  the  name  of  the  trustees  of  the  congregations. 
Instances  in  Pennsylvania  are  Riser's  AppeaP  and  Gass' 
Appeal.^ 

§  41.  Fourth,  suits  by  an  association  against  a  stranger. 

This  is  the  class  in  which  most  care  in  the  form  of  the 
suit  must  be  taken,  first,  because  the  plaintiff,  being  the 
association,  is  in  possession  of  all  the  knowledge  which  is 
required  in  order  to  bring  the  suit  in  the  proper  form  ; 
and  second,  the  defendant,  being  a  stranger,  has  a  right 
to  know  by  what  authority  the  suit  is  brought.  Who 
may  represent  the  association  in  such  a  suit  1  In  the  first 
place,  all  the  members  may  join  in  the  suit ;  secondly, 
any  person  to  whom  that  power  is  delegated  by  the  rules 
of  the  association,  for  instance,  the  trustees,  committee, 
officers,  etc. ;  third,  any  number  of  the  members  may  sue 
in  behalf  of  the  association,  if  it  appear  to  the  Court  that 
they  represent  the  interests  of  the  association ;  and  this 
may  be  shown  either  by  a  recital  of  the  authority  under 
which  they  act  (for  instance,  by  constitutional  provision, 
by  vote  of  the  association,  etc.),  or  in  any  way  satisfactory 
to  the  Court.  It  is  proper  to  set  forth  in  the  pleading 
the  authority  under  which  they  claim  to  represent  the 
association. 

The  right  of  an  association  to  sue  in  the  name  of 
several  of  its  members  w'as  recognized  at  an  early  date 

'  These  associations  may  be  regarded  in  a  twofold  aspect :  First, 
as  a  united  association;  and  second,  each  branch  of  the  association 
may  be  regarded  as  an  association  ;  and  accordingly  as  they  are  re- 
garded in  one  or  the  other  of  these  aspects,  suits  between  them  are 
illusti-ative  of  suits  between  members  of  an  association,  or  of  suits 
under  the  third  and  fourth  heads  of  the  divisions  we  have  made. 

'  62  Pa.  428.  ^  73  Pa.  39. 


UNINCORPORATED  ASSOCIATIONS.  69 

in  England.  In  Cockburn  vs.  Thompson  (1809),^  a  bill 
was  filed  by  several  persons  on  behalf  of  themselves  and 
all  others,  the  proprietors,  of  the  Philanthropic  Annuity 
Institution,  against  a  solicitor  of  the  institution.  A  plea 
of  want  of  joinder  of  proper  parties  was  overruled  by 
Lord  Eldon.  He  said :  "  The  strict  rule  is  that  all 
persons  materially  interested  in  the  subject-matter  of  the 
suit,  however  numerous,  ought  to  be  parties.  That  there 
may  be  a  complete  decree  between  all  the  parties  having 
material  interests :  but  that  being  a  general  rule  estab- 
lished for  the  convenient  administration  of  justice  must 
not  be  adhered  to  in  cases  to  which  consistently  with 
practical    conveniences   it  is    incapable  of  application." 

In  Maguire's  Estate,^  a  claim  by  the  St.  Rose  Dorcas 
Society,  an  unincorporated  charitable  association,  against 
an  estate  was  presented  in  the  Orphans'  Court  and  offered 
to  be  proved  by  two  of  the  members  of  the  society.  The 
auditing  judge  (Hanna,  P.  J.),  in  disallowing  the  claim, 
said :  "  The  St.  Hose  Society,  as  such,  has  no  existence 
in  law ;  it  has  no  corporate  being,  and  any  claim  the 
members  have  must  be  prosecuted  in  the  name  of  all  the 
members  of  the  society.  No  two  members  can  represent 
their  fellow  members,  and  prosecute  suits  in  their  behalf." 
This  was  overruled  by  the  Court  and  the  claim  was 
allowed.  Ashman,  J.,  said:  "  That  a  religious  or  chari- 
table society,  though  unincorporated,  may  appear  as  a 
party  plaintiff  in  the  Courts  of  the  state  without  joining 
all  the  members  in  the  action,  seems  too  clear  lor  dis- 
cussion." 

An  association  may  sue  either  in  equity  or  at  law.  In 
Brown  vs.  Griffin,'  a    bill  was  filed  by  fifteen  members 

'  16  Ves.  321.  ^  7  W.  N.  C.  214,  O.  C.  of  Philada. 

'  13  W.  N.  C.  91. 

5* 


70  UNINCORPORATED  ASSOCIATIONS. 

representing  an  association  against  three  persons,  of 
whom  two  were  members,  and  one  not  a  member  of  the 
association.  App  vs.  Lutheran  Congregation^  is  an  early 
case  in  Pennsylvania  and  an  illustration  of  suits  of  this 
class  at  law.  In  that  case  the  vestry  of  an  united 
congregation  brought  an  action  on  the  case  against  App, 
for  money  had  and  received,  and  obtained  a  verdict.  In 
Brown  vs.  Lutheran  Congregation,^  the  trustee  of  the 
German  Reformed  Congregation,  an  unincorporated  asso- 
ciation, brought  an  action  of  partition  against  the  Evan- 
gelical Lutheran  Church,  an  incorporated  association. 

These  cases  show  the  general  tendency  of  the  courts 
to  recognize  unincorporated  associations,  and  to  afford  to 
them  all  the  means  of  enforcing  and  protecting  their 
rights  which  are  afforded  to  individuals. 

§  42.  What  is  the  character  of  the  rights,  possessed  by 
the  members  of  unincorporated  associations,  which  courts 
of  justice  will  protect  and  enforce  1  Will  the  courts  only 
interfere  to  protect  rights  of  property,  or  do  they  consider 
that  mere  membership  in  an  association  is  itself  a  right 
which  will  be  protected  1  This  question  has  never  been 
directly  determined  in  Pennsylvania.  In  Bauer's  Appeal,^ 
the  Court  refused  to  interfere,  saying,  "  No  matter  of  pro- 
perty invites  it,  while  the  disputes  in  Montezuma  Tribe 
have  ample  means  of  remedy  in  the  tribunals  of  their  own 
choice."  In  the  Metropolitan  Base  Ball  Club  vs.  Simmons,"* 
it  was  shown  that  the  American  Association  of  base  ball 
clubs  possessed  no,  or  but  nominal,  property.  The  rights 
of  the  association  consisted  in  the  privilege  of  playing  with 
the  other  clubs  at  certain  fixed  times.     The  games  were 

'  6  Pa.  201  ;  Ryerss  vs.  Cong,  of  Blossburg,  5  Casey,  117. 

'  11  Harris,  495.  '  2  W.  N.  C.  242,  S.  C,  5  W.  N.  C.  485. 

*  17  W.  N.  C.  153. 


UNINCORPORATED  ASSOCIATIONS.  71 

the  source  of  great  profit ;  but  this  profit  was  not  directly 
the  property  of  the  association.  Judge  Thayer  said : 
"  These  are  certainly  rights  of  property  which  are  enti- 
tled to  the  protection  of  the  law,"  and  granted  an  in- 
junction to  prevent  the  association  from  expelling  tlie 
complainants. 

Sir  George  Jessel,  M.  E-,,  in  Rigby  vs.  Connol,^  said  :  "  I 
have  no  doubt  whatever  that  the  foundation  of  the  juris- 
diction is  the  right  of  property  vested  in  the  members  of 
the  society  and  of  which  he  is  unjustly  deprived  by  such 

unlawful  expulsion If  an  association  has  no 

property  and  takes  no  subscription  from  its  members,  I 
cannot  imagine  that  any  Court  of  Justice  could  interfere 
with  such  association  if  some  of  the  members  declined  to 
associate  with  some  of  the  others." 

This  involves  the  question  of  what  is  property.  If  by 
property  is  meant  that  which  has  a  pecuniary  value  and 
for  which  compensation  in  damages  would  be  sufficient 
remedy,  the  proposition  is  open  to  grave  objections,  and 
if  the  term  property  is  taken  in  its  broadest  sense,  that  is, 
any  right  which  the  law  will  enforce,  then  the  proposition 
means  nothing. 

There  is  no  reason  that  a  Court  should  not  enforce 
any  right  between  the  members  of  an  association  which 
they  would  enforce  between  individuals.  Neither  in  the 
case  of  individuals  nor  of  an  association  would  they  en- 
force purely  social  rights.  The  question  is  largely  a 
theoretical  one,  because  an  association  seldom  exists  which 
does  not  possess  some  property  (books,  memoranda,  rega- 
lia, etc.)  having  some  pecuniary  value,  however  slight.    In 

^  14  Ch.  D.  482.  In  Lyttleton  vs.  Blackburn,  45  L.  J.  Ch.  223  ; 
33  L.  T.  S.  642,  Lord  Romilly  expressed  doubts  whether  the  Court 
had  jurisdiction  over  an  association  possessing  no  property. 


72  UXIXCORPORATED  ASS0CIATI0X3. 

Beasly  r<^.  AUyn,^  the  point  was  made  that  the  property 
which  was  the  bone  of  contention  in  that  suit  was  of  too 
Httle  valne  (a  painted  wooden  bowl),  to  require  the  inter- 
ference of  the  Court  of  Equity.  The  Court  overruled 
that  o'bjection,  saying :  "  The  lawful  power  of  a  Court  of 
Equity  may  be  called  into  exercise  by  other  considera- 
tions than  the  intrinsic  or  pecuniary  value  of  property  of 
which  an  owner  has  been  unjustly  deprived  or  which  is 
withheld  from  him." 

Suppose  a  scientific  literary  association  having  no  prop- 
erty, with  no  dues  or  expenses,  and  whose  purpose  is  to 
meet  weekly  to  listen  to  lectures  delivered  by  eminent 
and  learned  men,  a  privilege  only  to  be  enjoyed  by  the 
members  of  the  association.  Such  a  privilege  is  property 
which  cannot  be  accurately  reckoned  in  dollars  and  cents, 
and  yet  if  a  member  was  expelled  from  such  an  associa- 
tion, without  cause,  and  in  direct  violation  of  its  consti- 
tution, it  cannot  be  doubted  that  a  Court  of  Equity  should 
interfere  to  compel  the  restoration  to  the  member  of  his 
privileges. 

§  43.  Let  us  look  at  one  more  point  and  we  shall 
close  our  consideration  of  the  subject  of  unincorporated 
associations.  If  membership  in  such  an  association  is 
property,  is  it  subject  to  execution  and  sale  for  the  debts 
of  the  owner  ^  It  is  a  species  of  property  which  is 
created  and  limited  by  the  articles  of  association.  In 
some  cases  these  would  render  it  a  mere  personal  license 
and  valueless  as  assets ;  in  others  it  would  be  transferable 
and  have  a  value  limited  by  the  terms  under  which  it  may 

1  12  W.  N.  C.  90.  In  O'Hara  vs.  Stack,  90  Pa.  477-491,  the 
profession  of  a  priest  of  the  Roman  Catholic  Church  was  held  to  be 
property  of  which  he  could  not  be  deprived  by  the  bishop  without 
showing  cause  and  affording  an  opportunity  of  defence. 


UNINCORPORATED  ASSOCIATIONS.  73 

be  transferred.  In  Thompson  vs.  Adaras,^  the  Supreme 
Court  said  that  a  seat  in  the  Philadelphia  Board  of  Bro- 
kers "  is  not  property  in  the  eye  of  the  law ;  it  cannot  be 
seized  in  execution  for  the  debts  of  the  members.  It  is 
the  mere  creature  of  the  board,  and  of  course  is  to  be 
lield  and  enjoyed  with  all  the  limitations  and  restrictions 
which  the  constitution  of  the  board  chose  to  put  upon  it." 
In  that  case  it  was  decided  not  to  be  property  because  of 
the  particular  limitations  put  upon  it  by  the  board.  The 
statement  of  Judge  Elcock,  who  decided  the  case  in  the 
Common  Pleas,  and  whose  views  were  confirmed  by  the 
Supreme  Court,  is  more  accurate :  ••  A  seat  in  the  board 
is  a  species  of  property,  encumbered  with  conditions ;  it 
is  not  a  matter  of  absolute  purchase,  for  it  never  was 
freed  from  the  conditions  and  duties  of  the  constitution 
and  bv-laws."-  But  we  see  no  reason  why  it  should  not 
be  taken  in  execution  and  sold  subject  to  the  limitations 
and  restrictions  which  the  constitution  of  the  board  chose 
to  put  upon  it.  In  the  constitution  spoken  of  above, 
it  was  declared  that  -  where  a  member  dies  his  seat  may 
be  sold  by  the  secretary,  and  after  satisfying  the  claims  of 
the  members  of  the  board,  the  balance  shall  be  paid  to 
his  legal  representatives."^    It  would  always  be  a  question 

'  7  W.  X.  C.  281 ;   S.  C.  4  W.  N.  C.  445  (S.  C). 

^  4  W.  X.  C.  445.  See.  also,  Evans  vs.  Wister,  1  W.  X.  C.  181. 
where  an  execution  was  nit  permitted  because  the  property  fell  within 
certain  rules  of  the  association  which  provided  for  the  disposition  of 
the  property. 

'  And  this  was  done  in  Singerly  Admr.  of  Singerly  vs.  Johnson,  1 
W.  X.  C.  122  (D.  C.)  ;  3  W.  X.  C.  541  (C.  P.).  See,  also,  Leech  «•■«. 
Leech,  3  W.  X.  C.  542.  In  Beatty's  Appeal,  8  Pa.  S.  C.  Dig.  331  ; 
22  W.  X.  C.  518  (S.  C),  45  Leg.  Int.  456,  the  Supreme  Court  held. 
tl>at  a  member  of  a  beneficial  society,  subject  to  the  rules  of  the  asso- 
ciation, might  change  at  will  the  designation  of  the  person  to  whom 
the  insurance  money  should  be  paid  at  his  death. 


74  UNINCORPORATED  ASSOCIATIONS. 

how  far  membership  in  an  unincorporated  association  was 
intended  to  be  transferable  or  transmissible,  and  in  most 
cases  either  the  constitution  or  the  nature  of  the  associa- 
tion would  prevent  its  possessing  such  a  character;  but  so 
far  as  it  is  in  conformity  with  the  regulations  of  the  asso- 
ciation it  should  be  considered  as  property,  and  subject  to 
all  the  rights  and  liabilities  of  property. 


INDEX. 


THE   REFERENCES   ARE    TO   THE    SECTIONS. 


AGENCY,  differs  from  unincorporated  associations,  1. 
principles  of,  16. 

applied  to  unincorporated  associations,  6. 
ARTICLES  OF  ASSOCIATION,  a  contract,  (J,  8,  17,  25,  26. 

BABB  vs.  REED,  13. 

BASE  BALL  CLUB,  12. 

BENEFICIAL  SOCIETY,  status  of,  1,  10,  12,  13,  14. 

BENEFITS,  13,  38. 

liability  of  members  of,  3. 

not  partnership,  10,  13. 

past  and  present  views  of,  10. 
BY-LAWS,  17. 

CANON  LAW,  concerning  unincorporated  associations,  2. 
CHARITABLE  SOCIETY,  unincorporated  association,  12,  13. 

not  partnership,  7. 
CHARITABLE  USES,  13. 
CHURCH,  1. 

CIVIL  LAW  concerning  unincorporated  associations,  2. 
CLUBS,  1,  9,  22. 
COLLEGIA,  2. 
COMMITTEES,  20,  22,  23. 

liability  of  members  of,  9,  12. 
COMPANIES,  Joint-Stock,  1. 
CONSTITUTIONS,  17. 

CORPORATIONS  differ  from  unincorporated  associations,  1. 
CREDIT,  dealing  on,  9. 

DEFENCE,  opportunity  for,  31. 

DEFINITION  of  unincorporated  association,  1. 

DUES,  19. 

ELDON'S,  LORD,  view  of  unincorporated  associations,  2. 
ENGLISH  DECISIONS,  9. 
EQUITY  JURISDICTION,  3. 
EXECUTION,  membership  taken  in,  43. 
EXPULSION,  28,  29,  30,  31. 

GOOD  FAITH,  30. 

GROWTH  of  unincorporated  associations,  4,  5,  11,  12. 

IRREGULARITIES  in  proceedings  of  unincorporated  associations,  31. 

JOINDER  of  parties,  36,  37,  38. 

JOINT-STOCK  CO.,  1. 

JURISDICTION  of  Courts,  27,  29,  31,  33,  36,  41,  42,  43. 


76  INDEX. 

[The  references  are  to  the  sections.] 

LIABILITY  of  member  of  unincorporated  association,  3,  12,  13,  15-24,  26. 

udar  sp,  17. 

as  to  third  persons,  17. 

for  his  own  acts,  18. 

to  association,  19. 

for  acts  of  association,  20. 

of  beneficial  association,  21. 
LITERARY  SOCIETY,  1,  3. 

MAJORITY,  rights  of,  26. 

MANAGEMENT,  25. 

MEMBERS,  relation  of  to  each  other,  8,  9. 

third  persons,  8,  9. 
MEMBERSHIP,  legal  property,  27,  42,  43. 
MOTIONS,  26. 

ORIGIN  of  uniucorporated  associations,  2. 

PARLIAMENTARY  PRACTICE,  26. 
PARTNERSHIP  ASSOCIATION,  1. 

differs  from  unincorporated  associations,  1,  6,  11,  12. 

deflned,  6. 
PENNSYLVANIA  LEGISLATION  concerning  unincorporated  associations,  3. 
POSITIONS  OF  TRUST,  32. 
POWERS,  indefinite,  30. 
PROPERTY  RIGHTS,  3,  34,  35,  42,  43. 
PROTCHETT  vs.  SCHAEFER,  13. 

for  public  and  private  purposes,  26. 
PROVISIONAL  COMMITTEE,  11. 

RELIGIOUS  ASSOCIATIONS,  3,  12. 

RULES  of  unincorporated  associations,  25,  26. 

SALE  OF  MEMBERSHIP,  43. 
SOCIALISTIC  ASSOCIATIONS,  12.^ 
STATUS  of  unincorporated  associations,  5-15. 
STATUTORY  PROVISIONS,  4. 
SUBSCRIPTIONS,  19. 
SUITS,  form  of,  36,  37. 

members  vs.  association,  38. 

of  beneficial  associations,  38. 

association  vs.  member,  39. 

stranger  vs.  association,  40. 

association  vs.  stranger,  41. 

TENANCY  IN  COMMON,  34. 

TRADE  ASSOCIATIONS,  9. 
TRUSTEES,  32,  34. 

UNIVERSITATES,  2. 

WAIVER  OF  IRREGULARITIES,  31. 


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